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.

Similar Articles
Relevancy Powered by MondaqAI
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”

Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

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