Currently a European Court of Human Rights (ECHR) decision (Barbulescu v. Romania) is attracting a lot of attention: The ECHR ruled that an employer is permitted to analyse an employee's private communication under certain circumstances.
A private company had set up an instant messenger service on the company’s computers. Despite internal regulations prohibiting private use of work equipment an engineer used the instant messenger to converse with his fiancée and his brother about sensitive topics such as health and sex life. The company monitored the communications of its employees and terminated the engineer’s employment contract.
After the Romanian courts had confirmed the termination, the engineer brought an action before the ECHR. He alleged a violation of his right to respect for his private and family life and his correspondence – without success. The ECHR did not find it unreasonable that an employer would want to verify that the employees completed their professional tasks during working hours. The surveillance measure was limited in scope and proportionate.
Although the judgment does not directly affect German employment law, it gives rise to reviewing the corporate day-by-day practice. In Germany, the legal situation regarding employers’ ability to monitor employees’ use of e-mail, Internet and chat services can be summarised as follows:
- If private use is prohibited, the employer may generally examine whether the entire use is actually business-related. However, systematic comprehensive monitoring is only permissible in case of a specific suspicion of serious abuse.
- If private use is permitted, the monitoring rights of employers are considerably restricted. Their extent depends on whether clear rules (e.g. in employment contracts, internal guidelines or works agreements) have been set and which statutes are applicable. It has not been ascertained yet whether the permission of private usage subjects the employer to the German Telecommunications Act (Telekommunikationsgesetz, TKG). Although several courts have denied this (recently Berlin-Brandenburg Regional Labour Court – 5 Sa 657/15), the German Data Protection Authorities follow the opposing view (see guidance to usage of e-mail and internet at work, January 2016). The question is of particular relevance because an infringement of the secrecy of telecommunications may constitute a crime. Thus, unilateral access by the employer to purely business-related e-mails would at least not be risk-free in the event of a mixed usage of professional and private communication. Further uncertainty is created by the frequently-expressed opinion that an entitlement to private use can even be based on established company practice ("betriebliche Übung").
It is advisable to establish clarity – either by prohibiting private usage or by providing specific regulations for a clear separation between business-related and private content. If private use is prohibited in its entirety, a works council has no co-determination rights in this respect (Hamm Regional Labour Court – 10 TaBV 1/06) and cannot enforce the permissibility, either.