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EU Juggernaut Germany Looks at Business Related e-Mail Different than from a Pure Privacy Perspective?

Tom Reding

Recently, the Higher Labor Court of Berlin-Brandenburg Germany ruled that an employer has the right to access and review an employee’s work-related e-mail during his / her absence from work.

The ruling makes it very clear that an employee’s rights to use the company’s e-mail system for private communications does not preclude the employer from reviewing an employee’s business related e-mail.

The circumstances behind this ruling were as follows:

  • The plaintiff (employee) could not work due to a long-term illness.
  • The employer was unsuccessful in locating the employee to get her consent, so that they  could access and read her business related e-mails, in order to respond to a customer’s request.
  • After several weeks, the employer circumvented the employee’s password, read and printed the employee’s business related e-mails.  (The employer did not read or print any e-mails labeled “private”.

The plaintiff (employee) requested a court order prohibiting her employer from accessing her e-mail account during any future absences without her explicit consent but, was unsuccessful in obtaining such an order.

The Higher Labor Court rejected the plaintiff’s reasoning that, because she and all other company employees were permitted to use the company’s computer system for private e-mail, her employer should therefore, be considered a so-called “provider of telecommunications services” and thus be required to observe the “secrecy of telecommunications” according to Germany’s Telecommunications Act (Telekommunikationsgestz).

The Higher Labor Court said, allowing use of a company e-mail system for private communication is merely a side effect of the employment relationship and does not fall under the scope of the Telecommunications Act.

As a non-German outsider, it appears that under certain circumstances an employer in Germany who may have a business need to read an employee’s e-mail may be granted the ability to do so, when the employer is unable to obtain the employee’s permission to do so.  This ruling represents to this non-German outsider, that the EU Privacy Laws regarding e-mail and other electronic communications has its limitations as discovered in this court ruling.

The author finds this most noteworthy.

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2 Responses

  1. As noted this seems to run counter to the EU Privacy laws regarding email. On the surface I don’t see anything malicious with the employer’s intent or at least stated intent other than it runs counter to the noted privacy laws. With that said, I also don’t understand why employees continue to operate under the assumption that email on their company system that is considered private shall remain so. I understand the need to consolidate our lives and use one email, one phone, one computer, etc..but your private and work life ought to be kept separate in my humble opinion at least when it comes to what you write or state. Is it that much of a challenge to keep a private web based email account and send your private emails to and from that account? If the few seconds it takes to switch to another account is a hassle, I think that employee may have bigger problems than the few seconds it takes to separate your personal and work life.

    • Richard,
      Thank you very much for your comments. For what it is worth, I agree with you and find your solution a most acceptable method for addressing this issue of personal / private vs. business related e-mail.

      Tom Reding, CRM

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