Permissible inspection of the employee's e-mail account in case of a justified interest
Decision of the Supreme Court from 28.6.2023, 6 ObA 1/22y – Permissible inspection of the employee's e-mail account in case of a justified interest.
The Supreme Court recently confirmed the decisions of the lower courts, according to which the inspection of employees' work email accounts is lawful if the balancing of interests between the interests and fundamental rights of the employee and the legitimate interests of the employer shows that the inspection is necessary to maintain the company's operations after the employee leaves.
The background to the decision was that management assistants were granted access to the email accounts of their predecessors because they contained communications with customers. The access was permissible as long as messages were not clearly recognizable as private. In this case - according to the Supreme Court - former employees must also expect that these are still relevant to the company.
The management assistants came across private messages, but their private nature was not recognizable; on the contrary, due to the company sender and recipient addresses, it could be assumed that they were business communications.
In agreement with the lower courts, the Supreme Court also denied the existence of a non-material claim for damages based on the GDPR. Such a claim would only exist in the event of "significant" violations of privacy. The intensity and extent of the violation are decisive. The Supreme Court cites exposure to the public as an example. However, this was not the case in this instance.