Messages exchanged in a private ‘chat’ are not suitable for defamatory conduct.

This was reaffirmed by the Court of Cassation, sez. lav., in its judgment of 28 February 2025, no. 5334.

On the subject of disciplinary dismissal, messages exchanged in a private ‘chat’, even if containing offensive comments, do not constitute just cause for termination since, being directed only to members of a specific group and not to an indistinct multitude of persons, they must be considered as private correspondence, closed and inviolable the need to protect the freedom and secrecy of the communications themselves.

In the first two levels of proceedings (the second before the Court of Appeal of Venice), the employee’s appeal against her dismissal for just cause, which had been decided following the publication, on a WhatsApp group reserved for colleagues, of a video in which the physical characteristics of a client were denigrated, was rejected.

Although the disclosure had taken place through another chat participant, the judges on the merits considered that the action was serious and likely to damage the company’s image and the privacy of the client, who had been filmed without her consent.

The employee then appealed to the Court of Cassation, raising several issues.

The appellant contested the violation of Article 15 of the Constitution, since the Court of Merit had considered the video shared in a private chat to be usable, and had deemed the employee’s conduct to be disciplinary in nature.

The Supreme Court upheld the appeal, agreeing with the appellant’s grounds: Article 15 of the Constitution essentially extends to any form of correspondence, the secrecy of which is therefore constitutionally protected (reiterating the principle recently expressed in Judgment No. 21965/2018).

The Court emphasised that, according to Article 15 of the Constitution, the concept of ‘correspondence’ includes any form of private communication between two or more persons, regardless of the medium used, such as WhatsApp, which is equated to private letters or messages.

Therefore, the freedom and secrecy of communication is protected even after the recipient has received the message. Consequently, the Court ruled out that the employee’s conduct could be considered unlawful, as it fell within the constitutionally guaranteed right to communicate confidentially.

The Supreme Court ruled that the content of an employee’s private correspondence cannot therefore justify dismissal.

In the case at hand, in which the dispute concerned only the publication of a video, the Court ruled that issues relating to the privacy of the person filmed in the video or the unauthorised processing of her data could not be taken into account.

The employee’s conduct, in fact, fell under the protection of Article 15 of the Constitution, since the video had been sent to a small group of colleagues, on WhatsApp, a medium that guarantees the secrecy of communication.

Even if the dissemination of the video took place through another chat participant, this action violated the right to confidentiality of correspondence, harming the employee.

The Supreme Court has clarified that moral judgments on an employee’s conduct cannot be considered just cause for dismissal.

Although extra-work-related conduct may also affect the bond of trust, it is not within the employer’s prerogatives to exercise a moral sanctioning power that restricts constitutionally protected freedoms, such as that concerning private correspondence.

The Court emphasised that the freedom and secrecy of private correspondence, as well as the right to confidentiality in the context of work, protect the dignity of the employee and prevent the content of private communications, sent by personal telephone in a confidential manner, from being considered grounds for dismissal, regardless of how the employer came to know about them.

The firm remains at your disposal for any clarification.