New OLG judgment: Is private email use subject to telecommunications secrecy?

In a recently published judgment by the Higher Regional Court of Thuringia dated 14 September 2021 (case no. 7 U 521/21), it ruled that employees' email communications are subject to telecommunications secrecy if the employer permits the use of telecommunications for private purposes.

Has this settled the long-running dispute on this issue? No. The court left the actual question open.

Facts

The plaintiff (hereinafter referred to as the employee) had worked for the defendant (hereinafter referred to as the employer) as a board member since 2002. The private use of the company email account provided by the employer was expressly permitted. There was also an internal guideline in which the employer itself recognized its status as a telecommunications service provider and undertook to maintain telecommunications secrecy. The employee was dismissed on 7 February 2020.

In a letter dated 15 April 2020, the employer also based the termination against the employee on an inspection and evaluation of the employee's business email inbox and his forwarding of various emails to his private email address and that of his wife after the notice of termination of 7 February 2020 was issued.

By way of an interim injunction, the employer was prohibited from accessing the email inbox without the employee's consent and from further processing the information contained therein. In addition, the employer was obliged to restrict the processing of the data already obtained through technical and organizational measures. The employer lodged an objection and the Regional Court subsequently lifted the interim injunction. In the opinion of the Regional Court, there was no entitlement to injunctive relief under § 44, 88 TKG. The employee appealed this decision and was successful.

Are employers obliged to maintain telecommunications secrecy?

The classification of whether an employer is a service provider within the meaning of the TKG in relation to its employees and is therefore obliged to maintain telecommunications secrecy if it allows its employees to use the business e-mail inbox or Internet access for private purposes is highly controversial in legal literature and case law.

While there has been a tendency in labor court and administrative court rulings in recent years to deny employers being telecommunications service providers, the majority of literature was of the opinion that employers are suchservice providers.

According to Section 3 No. 6 TKG (old version), on which the ruling is based, a service provider is anyone who provides telecommunications services in whole or in part on a commercial basis or assists in the provision of such services. According to § 3 No. 10 TKG, the business-like provision of telecommunications services is the sustained provision of telecommunications services to third parties with or without the intention of making a profit.

Arguments for not considering the employer as a telecommunications service provider include, for example, the view that the employer often does not provide a business-like telecommunications service (as correctly stated by the Lower Saxony Higher Labor Court in its ruling of 31 May 2010 - 12 Sa 875/09 and the Berlin-Brandenburg Higher Labor Court in its ruling of 16 February 2011 - 4 Sa 2132/10). Furthermore, it is sometimes argued that the TKG serves to implement the so-called ePrivacy Directive 2002/58/EC, which is intended to regulate public communications networks. However, an employer's communication services are not public, but only accessible to employees during working hours. Employees are also not in need of protection like users of public communication networks because they cannot trust that the content of the communication will remain confidential. The reason for this is the known legitimate interests of the employer, such as archiving obligations in accordance with Section 238 (2) HGB. In addition, there is no business justification because this "usually" has to be provided for a fee. However, this rule is reversed if the employer providing the service free of charge is regarded as a telecommunications services provider.

However, there are also reasons to consider the employer as a service provider so that it is subject to telecommunications secrecy. Historical reasons are often cited for this view. For example, reference is made to the legislative materials for the predecessor provision (§ 85 TKG-1996), which literally states: "Telecommunications secrecy thus applies [...] to private branch exchanges in companies and public authorities, insofar as they are made available to employees for private use." In addition, the purpose of the TKG is also to safeguard telecommunications secrecy, so that protection must be guaranteed generously. The opinion is also based on the fact that otherwise the fact that the connection is no longer provided exclusively for the employer's own purposes when the private use of an email account is permitted or tolerated would not be sufficiently taken into account. In the opinion of the court, the argument of lack of remuneration also does not apply, as it fails to recognize that §§ 88 TKG, 206 StGB, 91 ff. TKG do not refer to the legal definition in Section 3 No. 24 and therefore this characteristic plays no role in their application.

There is no final judgement by a federal court on this question and the higher courts have not had to deal with it for a long time.

The Higher Regional Court of Thuringia elected not to decide on either side either. According to the court, the fact that the employer itself recognized its status as a telecommunications service provider through the internal directive meant that it had created a basis of trust and was bound by it.

New legal situation due to TKG reform

The new TKG has been in force since December 1 2021. According to this, the requirement of "commercial lawfulness" has been removed. Whether the legislator deliberately wanted to make the decision to consider employers as telecommunications service providers if they provide their employees with email, internet access and telephones remains questionable. The explanatory memorandum is silent on the matter.

The draft amendment to the TTDSG submitted by the Federal Ministry for Digital and Transport Affairs (we reported on this in Data Protection Update No. 171) does not provide an answer to this question either.

Conclusion

Although the new decision of the Higher Regional Court of Thuringia once again brings new attention to the question of the applicability of telecommunications secrecy to employers, it does not change anything in terms of content. There are still good arguments against its applicability.

Nevertheless, should companies wish to inspect their employees' email inboxes due to concrete suspicion of misuse or betrayal of company or business secrets, for example, they should ensure that either the private use of email inboxes is expressly prohibited. In any case, the employer should not recognize itself as a telecommunications provider in the internal guidelines and should not undertake to maintain telecommunications secrecy.