Germany: Email And Internet In The Workplace—Guidelines From The German Data Protection Conference

The conference of the independent federal and state data protection authorities in Germany ("Data Protection Conference") has published guidelines for employers on the limits of control of email and other Internet services in the workplace on January 27, 2016. Within these guidelines, the data protectionists emphasize their restrictive position regarding the employer's control rights.

The guidelines summarize the common position of the data protection authorities. The document contains fundamental recommendations for public authorities and companies. While these guidelines will not be legally binding, they contain the basis for the data protection authorities' examination and evaluation of the processing of personal data. As such, the guidelines provide an indication on how the authorities will most likely decide in specific situations.

The initial question for assessing whether the control of email and other Internet services will be lawful is whether the employer allows private use of the Internet or of the company email account. If it does, according to the data protectionists, the employer is to be considered a provider of telecommunication or telemedia services. This means that it has to comply not only with the Federal Data Protection Act (Bundesdatenschutzgesetz, "BDSG"), but also with the regulations of the Telecommunication Act (Telekommunikationsgesetz, "TKG") and of the Telemedia Act (Telemediengesetz, "TMG"). In this case, the employer is subject to the legal principle of the secret of telecommunication whose violation constitutes a criminal offence.

Use restricted to business purposes—wider options

If the employer prohibits the use of Internet and email for private purposes, the employer may, in principle, conduct random checks to determine compliance. According to the data protectionists, these random checks should be conducted anonymously—i.e., particularly without the employer knowing the IP addresses of the respective users. A personalized, full check will, in the eyes of the data protectionist, only be permissible in the case of a concrete suspicion of a violation connected to a criminal offence committed by the employee, and, even in this case, only to a proportionate extent. Additionally, the most data protection-friendly methods to limit the use of Internet should be chosen. Blacklists or Whitelists are being recommended—i.e., lists blocking certain websites (Blacklists) or allowing access only to particular websites (Whitelists).

If the use of the company email account is limited to business purposes, the employer may, in principle, only take notice of the content of incoming and outgoing business emails if they are forwarded by the respective employees. An automatic forwarding, on the other hand, shall only be permissible if the employee is absent. To comply with the principle of proportionality, the Data Protection Conference recommends restricting this to situations where an out of office note will not be sufficient to protect the employer's business interests.

In the view of the data protectionists, the employer will only be allowed to access sent and received emails insofar as it is necessary for business purposes. Even if private use of the email account is forbidden, the employer may not take notice of the content of an email as soon as its private nature is recognized. Exceptions can apply where this is necessary to ensure effective prevention of misuse (see above).

Private use permitted—without employee consent, the employer's options are limited

If the use of Internet and/or email for private purposes is permitted or tolerated by the employer, the data protectionists consider the employer to be subject to the secret of telecommunication. This means that the employer may only access personal data with the employees' explicit consent. Employees may refuse to give their consent without incurring disadvantages as a result.

If the employer, for instance, wants to assess log data in order to determine whether any private use restrictions are being complied with, it will only be allowed to do so if the employee has consented both to his or her Internet usage being logged and to the employer accessing this data. Even where consent has been given, every step taken by the employer needs to be proportionate. Thus, a specific check, despite the employee's consent, will only be permitted in cases of a concrete suspicion of a crime, a violation of duties under the employment contract, or a violation of the agreement covering private email and Internet use.

Regarding email use, it is recommended to put in place—in compliance with the works council's codetermination rights—specific regulations on the settings of the company email account in case of an employee's absence. If these regulations are not complied with, according to the Data Protection Conference, the employer may access the email account if it is necessary to protect the business interests and if the employee has given prior consent.

If private use is permitted or tolerated, the employer will be allowed to access the email account or data files on Internet use without the employee's consent only in very limited circumstances. For instance, access is possible where it is necessary to detect, isolate, or eliminate errors or malfunctions.

Special restrictions concerning secret carriers

"Secret carriers" are persons who are entrusted with employees' confidential information as part of their work or tasks (e.g., members of the works council, company data protection officers, company physicians, or equal opportunity officers) and who, for this reason, enjoy a special relationship of trust with the respective employees. The employer may not access the emails of these secret carriers or control their Internet use under any circumstances. This prohibition also applies to communication by other employees with these secret carriers.

Spam filter and anti-virus software

The Data Protection Conference further points out that the requirements of data protection law also need to be adhered to when implementing measures to protect against computer viruses or to filter unwanted email.

According to the guidelines, employees need to be informed about a central spam filter in advance. Codetermination rights of the works council might also need to be taken into account in this respect. Furthermore, the most data protection-friendly measure of defense should be used. As such, marking suspicious messages is supposed to be preferable to deleting them. In the eyes of the data protectionists, employees should be able to decide, as autonomously as possible, how to treat messages addressed to them.

Finally, filtering and examining private emails that contain viruses in a way that enables the employer to see their content will, according to the data protectionists, only be allowed insofar as it is necessary to detect, isolate, or eliminate malfunctions or errors within the telecommunication system.

Concluding recommendations, effects on businesses

The data protection authorities recommend putting into place written policies on business and/or private use of the company email account and Internet, clearly regulating questions of access, logging, assessment, and controls. They also recommend allowing, if at all, only the private use of the Internet, including private webmail services, while prohibiting private use of the company email account. This will reduce the risks connected with private use of the company email account. Finally, non-personalized, role-related email accounts should be set up for secret carriers (e.g., workscouncil[at]company[dot]com), making it easier to exclude these from control and assessment.

Despite the non-binding character of the guidelines, we recommend following the Data Protection Conference's recommendations. In doing so, employment law regulations need to be complied with. Additionally, a works council's codetermination rights under the Works Constitution Act might need to be adhered to. It is to be assumed that the data protection authorities will align their decisions with the guidelines. Employers deviating from the guidelines might thus face fines or injunctions or even, in the worst case, criminal sanctions.

Originally published March 11, 2016

Learn more about our Employment & Benefits and Cybersecurity & Data Privacy practices.

Mayer Brown is a global legal services provider comprising legal practices that are separate entities (the "Mayer Brown Practices"). The Mayer Brown Practices are: Mayer Brown LLP and Mayer Brown Europe – Brussels LLP, both limited liability partnerships established in Illinois USA; Mayer Brown International LLP, a limited liability partnership incorporated in England and Wales (authorized and regulated by the Solicitors Regulation Authority and registered in England and Wales number OC 303359); Mayer Brown, a SELAS established in France; Mayer Brown JSM, a Hong Kong partnership and its associated entities in Asia; and Tauil & Chequer Advogados, a Brazilian law partnership with which Mayer Brown is associated. "Mayer Brown" and the Mayer Brown logo are the trademarks of the Mayer Brown Practices in their respective jurisdictions.

© Copyright 2016. The Mayer Brown Practices. All rights reserved.

This Mayer Brown article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions