On 1st January 2017 France brought into force a law on the “right to disconnect”, which aims at banning office emails outside working hours.
Conceived as a means to combat an increase in stress, linked to compulsive out-of-hours email checking, the new legislation requires all companies with more than 50 employees to start negotiations in order to define the rights of employees to ignore their smartphones out of working hours.
As is well known, replying to emails outside working hours is not usually considered as overtime and therefore generally remains unpaid. Moreover, employee availability during off-hours is nowadays considered “a duty” by many employers. For this reason the new law requires companies to reach an agreement with their employees, in which the out-of-hours times when employees are required to reply to office communications must be explicitly detailed. The new measure also aims to protect digital professionals, who work remotely and are therefore more exposed to off-hours calls.
The law was introduced after Labour Minister Myriam El Khomri had commissioned a report on the health impact of the uninterrupted flow of digital information, so-called “info-obesity”, coming from the workplace. The excessive use of digital devices on which employees are reachable 24/7 has been considered the cause of any number of health conditions from “burnout”, to sleeplessness and relationship problems.
A number of multinational companies based in France have already announced that they have already taken steps to put in place innovative solutions such as a “curfew” on evening communications or systems that automatically delete emails sent to employees when they are on holiday or not working.
An email is an electronic document with an electronic signature, since the username and password are included in the definition of an electronic signature according to art. 1 lett.q of the Italian Digital Administration Code.
This is what the Court of Prato correctly states in its decision of 15th April 2011, which has been recently published.
Thus, the evidential value of an email is freely assessable in court, given its objective characteristics of quality, safety, integrity and unchangeability.
In the case in question, the judge ruled that an email did not qualify as evidence.
The ruling focused on the legal status of this type of document when evaluating the evidential relevance of an email produced in proceedings in opposition to an injunction as a demonstration of a promptly expressed complaint regarding defects encountered in a piece of machinery.
According to the Court of Prato, the email sent without the presence of a mechanism of certification does not provide positive identification of the sender and does not prove the message was received by the recipient.
However, there is no doubt that an email can be classified as a document with an electronic signature “as the username and password used to access the mailbox are included in the collection of data utilized as methods of identifying information under ‘Art. 1, Lett. q) of the Italian Digital Administration Code”-
Consequently, the evidential value of the email in question is freely assessable in formulating the ruling also in consideration of the further procedural findings, firstly the failure to refuse to accept and to promptly contest the facts therein represented.
In the case under examination the recipient had from the outset refused to accept the circumstances asserted by the email in question and in the absence of further suitable evidence to confirm its content, this led to a negative appraisal in terms of evidence. The opponent’s claims were therefore rejected.
The decision is nevertheless of great importance as it reaffirms that emails are documents complete with an electronic signature.
Emails are electronic documents signed with an electronic signature, (in that) usernames and passwords are to be be considered as an electronic signature, in accordance with the definition given by Italian law (Digital Administration Code, legislative decree 82/2005, art. 1, lett. q).
This principle was (correctly) confirmed in the decision given by the Prato Court, on April 15, 2011.
Therefore, whether or not emails can be used as evidence must be decided by the judge, case by case.
The judge must observe the following criteria: quality, security, integrity and inalterability of the document.
In the case decided by the Prato Court, emails were not considered as evidence.