Limits to employer access to WhatsApp messages and email histories

In its ruling dated January 27, 2023 (case no. 12 Sa 56/21), the Baden-Württemberg Higher Labor Court ruled that if private use of a business email account is permitted, the employer is generally not permitted to carry out a covert review without suspicion. In the opinion of the LAG, this type of data utilization is unlawful and the private messages cannot be used in court. In this respect, the employer is shown the limits of monitoring and controlling employees. It must be announced and justified to the employee that private messages are to be processed. The employee must also be given the opportunity to save their private messages in a separate folder that cannot be accessed by the employer.

The LAG justified its decision by stating that checking private messages is a type of data processing that is not permitted under the provisions of the Federal Data Protection Act (Section 26 BDSG). If the employer nevertheless analyzes the employee's data without cause by checking private messages, the LAG is of the opinion that this not only results in a prohibition of use, which may mean that grounds for termination cannot be proven in the process, but the employee may also be entitled to compensation (Art. 82 GDPR) against the employer. According to the LAG, this applies in any case if the private use of business means of communication is permitted.

PBC legal takeaways: The decision of the LAG shows that the operational organization of the correct handling of communication tools in companies should by no means be underestimated. Companies should therefore ensure that clear rules and guidelines are created for employees' use of business communication tools. This includes, in particular, a clear decision regarding the private use of business means of communication. We would be happy to advise you on the correct use of business communication tools and work with you to create a company concept for their use.