by Hanno Timner
On February 16, 2011, the Higher Labor Court of Berlin-Brandenburg Germany ruled that an employer has the right to access and review work-related email correspondence of an employee during his/her absence from work (e.g. for reasons of illness or vacation). According to this ruling, such a review of the employee’s email is not prevented by an employee’s right to use the company email system for private correspondence as well. Through its decision, the Higher Labor Court has contributed to the ongoing debate in Germany about whether permitting an employee to use company equipment for private email correspondence leads to an application of the so-called "secrecy of telecommunications" (Telekommunikationsgeheimnis) and thus effectively precludes an employer’s right to access the employee’s email correspondence at all, including the business correspondence.
In the case at hand, the plaintiff was unable to work due to a long-term illness. The employer unsuccessfully tried to contact the employee to obtain her consent to the employer accessing and reading her business-related email correspondence in order to respond to customers’ requests. After several weeks, the employer circumvented the employee’s password and, in the presence of a member of the local works council and the company’s internal data protection officer, read and printed the employee’s business related email correspondence. The employer did not read or print email correspondence labeled “private.” The employee’s attempt to obtain a court order prohibiting her employer from accessing her email account during any future absences without her explicit consent was unsuccessful. The Higher Labor Court did not accept the plaintiff’s reasoning that, due the fact that the plaintiff, as well as all other employees, was permitted to use the company’s computer system for private email correspondence, her employer should be considered a so-called “provider of telecommunication services” and thus be required to observe the “secrecy of telecommunications” according to Sec. 88 Telecommunications Act (Telekommunikationsgesetz).
The Higher Labor Court ruling supports a number of recent court decisions which are opposed to the prevailing view in the legal literature and to the position of the German Federal Government (which commented on the issue recently in connection with the law-making procedure for the Employee Data Protection Act), holding that an employer does qualify as a "provider of telecommunication services" and therefore must observe the “secrecy of telecommunications” if the employer permits private email correspondence using the employer’s IT-system. Such secrecy of telecommunications permits only a professional provider of telecommunication services to collect call detail records or any other information relating to telecommunication services, insofar as required for billing purposes or in order to cure technical defects.
The Higher Labor Court’s view is based on the reasoning that allowing use of a company email system for private communication is merely a side effect of the employment relationship and does not fall under the scope of the Telecommunications Act. Additionally, the Court correctly pointed to the fact that the secrecy of telecommunications, if applicable, would only protect ongoing email traffic and not prevent the employer from accessing business-related email correspondence which has already arrived in the email inbox.
It remains to be seen whether the German Federal Labor Court will have an opportunity to decide this question, thereby putting an end to the ongoing debate about an employer’s rights to access its employees’ email correspondence. In the absence of such final ruling by the Federal Labor Court, the Higher Federal Labor Court ruling should constitute a sound basis for employers to access employees’ business-related email correspondence, even without the employees’ explicit consent, provided that the employer does not interfere with ongoing email traffic and does not access emails which are clearly private.
(See: LAG Berlin-Brandenburg, ruling of 16 February 2011, file number: 4 Sa 2132/19, DB 2011, 1281-1282.)