Illegal downloading of digital data is a problem which many employers have to face, especially in case of a termination of an employment relationship. On 3 April 2014, the Luxembourg Court of Cassation delivered a judgment which deals with this issue and which will mark a milestone for Luxembourg. This sentence, although passed in criminal proceedings, is expected to have a significant impact on Luxembourg labour law and will be of particular interest to employers. In fact, this sentence establishes the recognition of the illegal downloading of digital data by an employee as theft.
Recognition of the downloading of digital data as a criminal act and the conditions of relief of liability of the employee
Strictly speaking, the downloading of digital data was not until now qualified as theft, as this was opposed to a strict interpretation of the Articles 461 et seq. of the Luxembourg Criminal Code. The issue with the qualification as a criminal act was that digital data were seen as intangible assets. Due to this, the courts considered that digital data could not be appropriated unlawfully by someone and not change ownership between people.
The case-law of 3 April 2014 opposes this approach. The court held that “the illegal downloading of a company’s confidential digital data can be qualified as theft and the simple fact that an employee makes copies of his own data for personal purposes can be equally qualified as theft”.
Nevertheless, the sentence stipulates that the fraudulent intent shall not be maintained in the event that the employee uses, as evidence in court, the employer’s documents of which he has knowledge within the exercising of his function, and which are “strictly necessary for the exercise of his right of defence in the lawsuit against his employer”.
On the other hand, if the employee uses documents of which he had no knowledge within the exercising of his function and which are not strictly necessary for the exercise of his right of defence, he commits a theft.
Thus, the Court of Cassation has decided that “the copying by an employee of documents belonging to his employer for personal purposes, without the knowledge and against the will of the document owner and which are even only temporarily in the possession of the employee is to be seen as unlawful appropriation and this is characteristic of the material element of theft.”
Breach of professional secret and compliance with defence rights
In addition, an employee can also be guilty of breach of professional secrecy for downloading illegal digital data to use them as evidence in a lawsuit. Nonetheless, the Court of Cassation has decided that by virtue of the rights of defence (section 6 (1) of the European Association for the Defence of Human Rights) the theft of digital data subject to professional secrecy is justified, provided that the employee can prove that the breach of professional secrecy was inevitable for his defence and that the illegally obtained documents were absolutely necessary. In other words, the employee must not have any other means to protect or to have recognised his right of defence. Otherwise he could be found guilty of theft and additionally of breach of professional secrecy.
This case law will without doubt reinforce the employee’s obligation to return all items belonging to his former employer when leaving his job. This decision will also dissuade dissatisfied employees from taking certain documents before they leave the company and using them in a lawsuit against their former employer.
