This Update sets forth new considerations for email policies in the United States due to the NLRB’s recent ruling in Guard Publishing. Squire Sanders lawyers in the UK and Germany highlight some of the legal concerns employers face with email policies in those countries.

UK. Simply storing data relating to employee telephone, email and Internet use may be problematic. The European Court of Human Rights has ruled that an employer infringed an employee’s right to privacy by secretly monitoring her work telephone calls, emails and Internet use, contrary to Article 8 of the European Convention on Human Rights. Specifically, the employee had a reasonable expectation of privacy as she had not been warned that her communications and Internet use would be monitored. Perhaps of more concern to employers, the Court also ruled that the employer infringed her right to privacy merely by storing data relating to her telephone, email and Internet usage without her knowledge. Businesses that routinely store emails or retain detailed telephone bills are therefore wise to review whether such storage is necessary and, if so, in accordance with the law.

Germany. Screening employee emails may be a criminal offense. Screening employee emails on corporate computers may constitute a criminal violation under the German Criminal Code. The Higher Regional Court of Karlsruhe (OLG Karlsruhe) has determined that screening of emails is a criminal offense if the employer allows or tolerates the private use of email, unless the employee has consented to the screening or unless the screening is justified by other legal cause. Accordingly, some employers in Germany have policies that restrict the use of their computer systems to business purposes only. This restriction can conflict with worldwide email policies of multinational companies that allow the reasonable use of private email.