The legal boundaries regarding the screening of an employee’s corporate email account and questions concerning the admissibility of those emails as evidence in court (eg in a wrongful dismissal lawsuit) have not been finally resolved. No express evidence exclusion rule is laid down by law, either in the Civil Code or in the Labour Court Act. Questions regarding the admissibility of corporate emails as evidence in general depend on whether the private use of corporate email accounts was forbidden, allowed or at least tolerated by the company.
If the private use of corporate email accounts is expressly forbidden, the employer is generally permitted to check on a random basis, and the screened emails may be used as evidence in court. The reason for this is that the Telecommunications Act (Telekommunikationsgesetz) does not apply, because in this case the company cannot be seen as a “service provider” within the meaning of the Act. Consequently, the provisions of the Telecommunications Act protecting the secrecy of telecommunications and the general right of personality cannot be infringed.
However, a more complex and important issue is whether the private use of a corporate email account should be admissible evidence in cases where such use is allowed or at least tolerated by the company. According to a predominant opinion for quite some time, the Telecommunications Act is applicable. As a result, access to such emails would be prohibited.
Nonetheless, the two most recent court decisions concerning this subject came to a different conclusion. In 2010, the Higher Labour Court Niedersachsen (LAG Niedersachsen) decided on March 31, 2010 (docket number: 12 Sa 875/09) in a wrongful dismissal lawsuit, that the Telecommunications Act was inapplicable, because employers cannot be deemed to be service providers for the purposes of the Act. Therefore, the employer was entitled to access the email account and obtain the data. The court also decided that the corporate email correspondence obtained in this way may be used as evidence in court. The Higher Labour Court Berlin Brandenburg came to the same conclusion in its decision from February 16, 2011 (docket number: 4 Sa 2132/10). In this case, no internal policies concerning email data existed, and the employer had been attempting to contact the employee for two months before accessing her corporate email account for the purpose of processing customer mail. The court ruled that the act of granting internet access for private usage did not qualify the company as a service provider. Therefore, the provisions of the Telecommunications Act did not apply and the data constitutes admissible evidence.
Nevertheless, it remains to be seen how the Highest Labour Court will decide these cases. The Highest Labour Court had dealt with a similar issue regarding corporate data protection. In this case (dated June 20, 2013 – docket number: 2 AZR 546/12), the employer opened an employee’s locker without the knowledge of the employee in order to obtain evidence to prove a theft committed by the employee. The Highest Labour Court decided that the employee’s general right to privacy as laid down in the Federal Data Protection Act (Bundesdatenschutzgesetz) may be infringed. However, if the employer’s action affecting the employee’s general right to privacy is necessary and proportionate, it is covered by a legitimate interest of the company and therefore allowed. In this case, the evidence is not excluded in court. It remains to be seen whether the principles found by the Highest Court in this decision will be applied in corporate email cases in future.
Additionally, although several questions regarding this issue have not yet been answered, the two lower court decisions may indicate that the Highest Labour Court will in future approve the screening of corporate email as lawful and approve its admissibility as evidence in court.