Internet use at work

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The Internet use at work concerns the legal question of whether and to what extent workers because of the employment contract at the workplace their work with the private use of official made available to Internet access allowed to spend.

General

To date, there are no statutory provisions or express labor regulations for the right to access the Internet / Intranet or to use e-mail . As a rule, rights and obligations result from the employment contract , a service or works agreement or from company practice . The discussion about access to communication systems is influenced by the question of private use at the workplace and the control options by the employer, which is limited by employee data protection.

Legal background

In most cases, access to the Internet is regulated by the principle of company practice ( custom ): Company practice assumes that the relevant practice was at least recognizable to the employer and that the employee could trust that it would continue to do so in the future current state. How long such a practice must have existed cannot be determined with certainty; as a rule, a period of half a year to a year should be sufficient.

In many cases, employees are permitted to use the company's communication systems for private purposes as well. So far, these regulations have applied almost without exception to the use of the telephone system , which was usually permitted in local areas for short private calls . If private telephoning is permitted, employees will be able to assume that private e-mails and internet use are also possible to a comparable extent, at least if the employer does not incur any additional costs.

Works agreements / service agreements are a way of regulating access to the Internet and intranet and ensuring responsible use of electronic communication systems. Such an agreement can at the same time reduce the risk of possible monitoring and control measures by employers.

If no regulations have been made, the principles of employment contract law must be used: If the employer does not expressly or coherently permit the private exchange of data using company communication systems, a privately held telephone call by an employee is a violation of ancillary contractual obligations and is therefore inadmissible. Exceptions to this are so-called business- related phone calls, for example the notification that the return home is delayed due to operational work.

These principles can also be transferred to other means of communication such as e-mail and the Internet, because the new technologies enable business and private rooms to be networked far beyond the scope of the telephone.

Control in the workplace

In principle, employers are permitted to monitor telephone calls, Internet and e-mail activities of employees within a regulated framework. According to German law, these control options are bound by strict requirements relating to employee data protection.

Supreme court decisions on the control of e-mail communication or internet use at the workplace have not yet been made. The principles developed in the jurisprudence regarding the control options for telephone calls can, however, be transferred to the new information and communication technologies: In the opinion of the German highest courts, general, systematic surveillance is not permitted, as it is incompatible with the general right to personal privacy and the right to informational self-determination are. These principles are put into concrete terms by protective provisions in the Works Constitution Act and in the Federal Data Protection Act .

Insofar as private use of the company's communication systems is permitted by the employer or is not explicitly excluded, both telecommunications secrecy and the data protection provisions of the Telecommunications Act and the Information and Communication Services Act apply .

The explicit employee data protection has not yet been regulated by any law in Germany. This is regretted by both the trade unions and the Bundestag (resolution of February 17, 2005).

Decisions of the BAG and the LAGe

See also

literature

  • Stefan Ernst: The employer, e-mail and the Internet ; in: Neue Zeitschrift für Arbeitsrecht (NZA) 2002, 585
  • Stefan Kramer: BAG on termination due to private internet use , NZA 2007,1338
  • Robert Koch: Insurance cover for private online use at work ; VersR 2006, 1433
  • Peter Wedde: Internet and e-mail at work ; The Staff Council (PersR) 2007, 107
  • Raimund Waltermann: Entitlement to private Internet use through company practice? NZA 2007, 529
  • Stefan Holzner: Private Use of E-Mail and Internet at Work , BB 2009, 2148
  • Stefan Kramer: Design of company regulations for IT use , Arbeitsrecht Aktuell (ArbR) 2010, 164