The conference of the independent federal and state data protection authorities in Germany (“Data Protection Conference”) has published guidelines for employers on the limits of control of email and other Internet services in the workplace on January 27, 2016. Within these guidelines, the data protectionists emphasize their restrictive position regarding the employer’s control rights.
The guidelines summarize the common position of the data protection authorities. The document contains fundamental recommendations for public authorities and companies. While these guidelines will not be legally binding, they contain the basis for the data protection authorities’ examination and evaluation of the processing of personal data. As such, the guidelines provide an indication on how the authorities will most likely decide in specific situations.
The initial question for assessing whether the control of email and other Internet services will be lawful is whether the employer allows private use of the Internet or of the company email account. If it does, according to the data protectionists, the employer is to be considered a provider of telecommunication or telemedia services. This means that it has to comply not only with the Federal Data Protection Act (Bundesdatenschutzgesetz, “BDSG”), but also with the regulations of the Telecommunication Act (Telekommunikationsgesetz, “TKG”) and of the Telemedia Act (Telemediengesetz, “TMG”). In this case, the employer is subject to the legal principle of the secret of telecommunication whose violation constitutes a criminal offence.
Use restricted to business purposes—wider Options
If the employer prohibits the use of Internet and email for private purposes, the employer may, in principle, conduct random checks to determine compliance. According to the data protectionists, these random checks should be conducted anonymously—i.e., particularly without the employer knowing the IP addresses of the respective users. A personalized, full check will, in the eyes of the data protectionist, only be permissible in the case of a concrete suspicion of a violation connected to a criminal offence committed by the employee, and, even in this case, only to a proportionate extent. Additionally, the most data protection-friendly methods to limit the use of Internet should be chosen. Blacklists or Whitelists are being recommended—i.e., lists blocking certain websites (Blacklists) or allowing access only to particular websites (Whitelists).
If the use of the company email account is limited to business purposes, the employer may, in principle, only take notice of the content of incoming and outgoing business emails if they are forwarded by the respective employees. An automatic forwarding, on the other hand, shall only be permissible if the employee is absent. To comply with the principle of proportionality, the Data Protection Conference recommends restricting this to situations where an out of office note will not be sufficient to protect the employer's business interests.
In the view of the data protectionists, the employer will only be allowed to access sent and received emails insofar as it is necessary for business purposes. Even if private use of the email account is forbidden, the employer may not take notice of the content of an email as soon as its private nature is recognized. Exceptions can apply where this is necessary to ensure effective prevention of misuse (see above).
Private use permitted—without employee consent, the employer’s options are limited
If the use of Internet and/or email for private purposes is permitted or tolerated by the employer, the data protectionists consider the employer to be subject to the secret of telecommunication. This means that the employer may only access personal data with the employees’ explicit consent. Employees may refuse to give their consent without incurring disadvantages as a result.
If the employer, for instance, wants to assess log data in order to determine whether any private use restrictions are being complied with, it will only be allowed to do so if the employee has consented both to his or her Internet usage being logged and to the employer accessing this data. Even where consent has been given, every step taken by the employer needs to be proportionate. Thus, a specific check, despite the employee's consent, will only be permitted in cases of a concrete suspicion of a crime, a violation of duties under the employment contract, or a violation of the agreement covering private email and Internet use.
Regarding email use, it is recommended to put in place—in compliance with the works council's codetermination rights—specific regulations on the settings of the company email account in case of an employee's absence. If these regulations are not complied with, according to the Data Protection Conference, the employer may access the email account if it is necessary to protect the business interests and if the employee has given prior consent.
If private use is permitted or tolerated, the employer will be allowed to access the email account or data files on Internet use without the employee’s consent only in very limited circumstances. For instance, access is possible where it is necessary to detect, isolate, or eliminate errors or malfunctions.
Special restrictions concerning secret carriers
“Secret carriers” are persons who are entrusted with employees’ confidential information as part of their work or tasks (e.g., members of the works council, company data protection officers, company physicians, or equal opportunity officers) and who, for this reason, enjoy a special relationship of trust with the respective employees. The employer may not access the emails of these secret carriers or control their Internet use under any circumstances. This prohibition also applies to communication by other employees with these secret carriers.
Spam filter and anti-virus software
The Data Protection Conference further points out that the requirements of data protection law also need to be adhered to when implementing measures to protect against computer viruses or to filter unwanted email.
According to the guidelines, employees need to be informed about a central spam filter in advance. Codetermination rights of the works council might also need to be taken into account in this respect. Furthermore, the most data protection-friendly measure of defense should be used. As such, marking suspicious messages is supposed to be preferable to deleting them. In the eyes of the data protectionists, employees should be able to decide, as autonomously as possible, how to treat messages addressed to them.
Finally, filtering and examining private emails that contain viruses in a way that enables the employer to see their content will, according to the data protectionists, only be allowed insofar as it is necessary to detect, isolate, or eliminate malfunctions or errors within the telecommunication system.
Concluding recommendations, effects on businesses
The data protection authorities recommend putting into place written policies on business and/or private use of the company email account and Internet, clearly regulating questions of access, logging, assessment, and controls. They also recommend allowing, if at all, only the private use of the Internet, including private webmail services, while prohibiting private use of the company email account. This will reduce the risks connected with private use of the company email account. Finally, non-personalized, role-related email accounts should be set up for secret carriers (e.g., workscouncil[at]company[dot]com), making it easier to exclude these from control and assessment.
Despite the non-binding character of the guidelines, we recommend following the Data Protection Conference’s recommendations. In doing so, employment law regulations need to be complied with. Additionally, a works council’s codetermination rights under the Works Constitution Act might need to be adhered to. It is to be assumed that the data protection authorities will align their decisions with the guidelines. Employers deviating from the guidelines might thus face fines or injunctions or even, in the worst case, criminal sanctions.