Important ruling may suggest development in the law
governing employers' access to employee emails
Are employers allowed to access their employees' email or
does such behaviour violate the secrecy of telecommunications?
Legal commentary and case law suggests that the prevailing view is
that employers are not permitted to access their employees'
e-mail if employees have been allowed to use their company email
address for private purposes. However, the Administrative Court in
Karlsruhe on 27 May 2013 decided differently in an important
lawsuit which involved the former Prime Minister of
Baden-Württemberg, Stefan Mappus, as employee (docket number
– 2 K 3249/12). It granted the employer access to the
employee's email communication even though he had been allowed
private use of his company email address. It will be interesting to
follow the development of this highly controversial topic and see
whether the predominant position will continue to prevail. Until a
last-resort decision by the Federal Labor Court in Germany
acknowledges the change in legal practice, employers should
carefully assess the potential legal risk and continue to
explicitly prohibit private use of company email accounts in order
to enable themselves to access those accounts at a later stage if
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
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