Emails: Private Stays Private

The daily life of a company is unimaginable without email these days. Firms often tolerate male and female employees using their work email address at least to some extent for private mails too. In general companies are not aware of the legal consequences of this.


Consequences of Private Email Use

Jurisprudence is currently based on the fact that an employer who gives an employee an email account is on a par with a telecommunications provider. Thus the same regulations apply to the company. I.e.: the employer is under threat of a penalty as it is forbidden without written consent from the employee to monitor emails – even it is only to ensure holiday cover. It similarly applies if the employee has left the company and urgent information is needed. Forwarding of incoming messages is as inadmissible as is the deletion of the account.


Unclear Legal Bases

The current legal situation is more confusing: Because on the one hand the company is legally bound to archive business post. Emails are business post – as long as they are not private emails. To meet a legally defined retention period emails must be retained and be retrievable. But this conflicts with telecommunications law and data protection law where the employer has very narrow boundaries: even if he selectively archives he should not access these and should distinguish between private and business mails.


Obvious Need for Regulation

Harmonisation of the valid legal bases is thus urgently needed. However employees and employers often agree on the operational requirements of sickness cover, archiving etc. But if you want to play safe, employees can be asked to sign a consent form which clearly states the cases where access to e-mails is allowed – and that archiving them is approved.