Telecommunications secrecy does not apply to private use of company e-mail

Until now, there has been a widespread legal opinion in Germany, for example held by the Data Protection Conference of the Federal Government and the Federal States (DSK), that employers who allow their employees to use company emails or the internet privately, or at least tolerate this, are considered to be providers of telecommunications services. The consequence: telecommunications secrecy would apply to them. Employers would therefore be strictly prohibited from monitoring their employees' private messages. A violation could even be a criminal offense under Section 206 of the German Criminal Code (StGB). However, there is now a new, groundbreaking assessment that calls this view into question.

The Federal Network Agency has made it clear that it sees the case differently to the DSK. In a current information paper, it explains that offers between employers and employees – such as the provision of an email inbox for private purposes – do not fall under the definition of telecommunications services.

The reason for this is that such services "generally have to be provided for a fee". The regulatory authority writes that the provision of e-mail mailboxes to employees is not an independent commercial business but simply a work tool. Even if employees are allowed to use it privately, the employer's offer is not aimed at gaining a business advantage or demanding payment. It is therefore not an economic activity within the meaning of the law.

What does this mean for employers?

If private email use at the workplace is not covered by telecommunications secrecy, employers "only" have to comply with the provisions of the General Data Protection Regulation (GDPR) and the Federal Data Protection Act (BDSG). This means that the strict criminal law prohibitions associated with telecommunications secrecy do not apply. However, there are still obligations when handling personal data that restrict the monitoring of private communications.

Berlin lawyer Carlo Piltz concludes that the legal trend is increasingly moving in the direction of telecommunications secrecy not being relevant for the private use of company email inboxes. This gives employers more clarity and reduces the risk of criminal prosecution. Previously, the North Rhine-Westphalian data protection commissioner Bettina Gauyk had already departed from the DSK consensus similarly to her colleagues in Hesse. In her 2024 annual report, she also assumes that telecommunications secrecy does not apply in these cases. The association of state data protection controllers has not yet commented on this again.

(mki)