A disparaging statement becomes an act of unfair competition only if it is made public. The commercial chamber quashes the decision that had found disparagement in internal emails, without finding that they had been sent to a third party outside the sending company. It also points out that pecuniary loss claimed in addition to non-pecuniary loss must be proved, on the basis of Article 1240 of the French Civil Code (Com., 7 January 2026, No. 24-18.085).
Key points
- A disparaging statement constitutes an act of unfair competition only if it is made public.
- An email exchanged within a company is not enough: it must be established that a third party outside that company received it.
- The accuracy of critical statements is no shield: the lower court judges found harm to commercial image despite that accuracy.
- The appropriation of a competitor's confidential information necessarily gives rise to damage, even if only non-pecuniary.
- Pecuniary loss – loss suffered, loss of profit or loss of chance (perte de chance) – must be proved by the company claiming it.
A former employee who became a competitor's executive
The commercial chamber quashes the decision that had found disparagement on the basis of internal emails, for want of any finding that a third party outside the sending company had received them.
A company selling, designing and producing computer hardware and software employed, from 2009 to 2015, a salesperson responsible for defence sector accounts. That employee resigned by registered letter of 30 May 2015, with effect from 31 July 2015. They then became a shareholder and manager (gérant) of a competing company. The former employer brought proceedings against that employee and the competing company seeking compensation for the damage suffered, for various acts of unfair competition.
The decision under appeal (CA Paris, 3 April 2024, No. 22/06206) found two faults: the holding, by the competing company, of confidential information obtained by the employee during their employment contract, and disparagement arising from emails sent by its executive. It awarded compensation for non-pecuniary loss linked to commercial disruption and for damage relating to the handling of the dispute, while dismissing the claims for pecuniary loss. Both companies lodged an appeal to the Cour de cassation.
The Cour de cassation (France's highest civil court) quashes in part, as regards the awards of compensation alone: the judges could not classify internal emails as disparagement without finding that they had been received by a third party outside the sending company. It dismisses, however, the former employer's appeal, since the burden of proving pecuniary loss lay with it. The case is remitted to the Versailles court of appeal.
Can an internal email amount to disparagement?
An internal email amounts to disparagement only if a third party outside the sending company received it.
The commercial chamber states the rule in a single sentence:
A disparaging statement can constitute an act of unfair competition only if it is made public.
Publicity is not measured here by the scale of circulation. It comes down to a precise finding: did the message reach a person outside the company that sent it? The lower court judges had noted that the statements, concerning the former employer's late payments and its lack of communication, harmed its commercial image, regardless of their accuracy. The Cour de cassation holds that finding insufficient.
In so ruling, without finding, as it was required to do, that the internal emails at issue had been sent to a third party [outside the company being sued], the court of appeal did not give a legal basis for its decision.
Two practical consequences follow. A company that discovers critical statements about itself in a competitor's mailboxes must identify a recipient outside that competitor. Conversely, the company complained of can rely on the purely internal nature of the exchange, without even discussing the content of the statement. The debate thus shifts from the substance of the message to the list of its recipients.
What the decision settles on proof of damage
The decision confirms that damage, at least non-pecuniary, follows from the appropriation of confidential information, but that pecuniary loss claimed in addition must be proved.
First, while damage, even if only non-pecuniary, necessarily follows from an act of unfair competition by appropriation of a competitor's confidential information, the competitor which claims, in addition to its non-pecuniary loss, pecuniary loss consisting in a loss suffered, in a loss of profit, or in a loss of chance of avoiding a loss or making a gain, must prove it.
The former employer argued that the misappropriation of privileged information about customers necessarily gives rise to economic damage, which the court ought to assess. The commercial chamber rejects that reasoning: the presumption stops at non-pecuniary loss. It also approves the lower court judges for having held that the alleged unfair manoeuvres, consisting in the ousting from a distribution exclusivity and in the diversion of customers, were not made out. As the case law stood on 7 January 2026, the injured company therefore bears a separate burden of proof for each head of pecuniary loss.
The quashing remains confined to the two awards of compensation. The heads relating to court costs and to the payment of a sum under Article 700 of the French Code of Civil Procedure stand, as does the dismissal of the claim for damages for abuse of process. The court of appeal to which the case is remitted will re-examine the compensation, and the decision discussed here does not prejudge the outcome.
What to do when facing an unfair competitor?
Building the case matters as much as the fault: each complaint must be linked to an external recipient or to a quantified loss.
On disparagement, the useful question is not whether the statement is unflattering, nor even whether it is accurate. It is who received it. A message sent to a generic internal mailbox, obtained by way of an investigative measure (mesure d'instruction), does not in itself prove that it was made public. A screenshot of an internal mailbox is therefore no substitute for identifying a customer, a supplier or a partner as the recipient of the statement.
On compensation, the decision calls for a clear separation of the heads of loss. Commercial disruption and harm to image fall within non-pecuniary loss, which follows from the appropriation of confidential information. Lost market share, cancelled orders and lost profits fall within pecuniary loss: they require documents linking the fault found to the business lost. The lower court judges here rejected uncertified internal quotations and forecasts, for want of a demonstrated causal link.
Points to document before suing a competitor
- Identify, for each statement complained of, a recipient outside the sending company: without one, disparagement is not made out.
- Distinguish in the claims between non-pecuniary loss, which follows from the appropriation of confidential information, and pecuniary loss, which must be demonstrated head by head.
- Gather documents linking the alleged fault to the business actually lost, rather than uncertified internal projections.
- Check that there is an exclusivity enforceable against third parties and a non-compete clause before accusing a competitor of diverting customers.
- Secure in advance the commercial data entrusted to employees, whose appropriation by a competitor is in itself an act of unfair competition.
Frequently Asked Questions
Can an internal email amount to disparagement of a competitor?
Not unless it is made public. On 7 January 2026 the Cour de cassation held that a disparaging statement amounts to unfair competition only if it is made public, and that the court must find that the internal emails at issue were sent to a third party outside the sending company. A message that stays inside the company, however critical, and even if sent to a generic address, is therefore not enough.
Must a loss of turnover be proved to obtain damages for unfair competition?
Yes for pecuniary loss, no for non-pecuniary loss. The appropriation of a competitor's confidential information necessarily gives rise to damage, even if only non-pecuniary. By contrast, a company that also claims a loss suffered, a loss of profit, or a loss of chance of avoiding a loss or making a gain must prove it. Uncertified internal forecasts were held insufficient here.
Can a former employee take client files to their new company?
No. The lower court judges classified as unfair competition the fact that a competing company held confidential information about a business's activity, obtained by an employee during the performance of their employment contract, on the basis of Article 1240 of the French Civil Code. That classification was not called into question by the Cour de cassation on 7 January 2026.
Is losing a distribution exclusivity to a competitor wrongful in itself?
No, the abruptness of that loss is not enough. In the case decided on 7 January 2026, the company ousted from a distribution exclusivity showed no unfair manoeuvres by its competitor to push it aside and divert its customers. The Cour de cassation approved the lower court judges: without proof of manoeuvres, the loss of exclusive distributor status is explained by free competition.
Can accurate statements about a competitor's late payments be sanctioned?
Accuracy is no shield: the lower court judges had found harm to commercial image, regardless of whether the statements were accurate. But the award was quashed on 7 January 2026 for a different reason: the judges had not found that the emails were sent to a third party outside the sending company. Publicity of the statement remains the first condition.