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Created on Tuesday, 20 April 2010 17:14

Last Updated on Tuesday, 05 March 2013 15:25

Secrecy of Private eMails at Work

In contrast to a widely assumption, not all private eMails written or read at work are forbidden for the employer. This article will give you an overview on what is allowed and what not.

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Privacy of telecommunication enjoys a high esteem in Germany (art. 10 GG). Mostly everybody believes that due to this, the employer has no right to inspect incoming or outgoing eMails. This is a substantial error. As the recently published judgment of VG Frankfurt/Main of November 6, 2008 (re 1 K 628/08.F 3) shows the privacy of telecommunication has only limited effect in employment relationships.

The secrecy of telecommunication applies to phone calls, fax, and eMails. The secret tapping of phone calls or secretly reading faxes is subject to prosecution (§206 StGB) and will be punished with up to five years or a fine. Employers who enable eMail communication for their staff are legally considered as providers of telecommunication services. This is not expressly written in any statute but it is the ruling opinion among telecommunications experts.

To prevent problems with the secrecy of remote communication, many companies forbid their personnel the sending of private eMails. In the above mentioned judgment, the defending company, whose shares are sold on the stock market, was sued by Bundesanstalt für Finanzdienstleistungsaufsicht, Federal Financial Supervisory Authority, to disclose all archived eMails. The company was reluctant because many of the archived eMails were exclusively of a private nature. The company had the legal opinion that it was not allowed to disclose the private eMails because this would constitute a criminal offense.

What many experts did not see, was that the Federal

Court judged had already determined in 2006 (decision of March 2, 2006, re 2 BvR 2099/04) that telecommunication secrecy is only applicable for "running telecommunication operations" regarding online searches. One year later, this court reaffirmed its opinion (judgment of February 27, 2007, re: 1 BvR 370/07; 1 BvR 595/07). The administrative court concluded

from this prevailing case law that eMails are not protected anymore, when they have been archived. The court dismissed the case.

This judgment shows that companies only have small risks when they allow employees private eMail correspondence. Whenever it is necessary to inspect eMails, they are not are not protected anymore. The law only protects the communication in transition and prohibits only taping and secretly reading eMails. As soon as the eMail has reached its destination, it is protected just as any other file on a computer. Such is the precedence of the Federal Constitutional Court which the Administrative Court Frankfurt / Main only set into action.