Austria: Access to the employee’s e-mail account and data protection

 

The operational handling of e-mail addresses or e-mail accounts, which may also be used privately by employees, repeatedly raises questions in the context of employment and data protection law.

If employees have an e-mail address consisting of their first and last names, this is personal data in accordance with Article 4 (1) GDPR. In principle, the employee may assume that the content of the communication will be treated confidentially. In its recent decision OGH 28.6.2023, 6 ObA 1/22y, the Supreme Court had to deal with the lawsuit of two former employees who demanded non-material damages due to the inspection of their e-mail correspondence by the former employer. As a result, the employer has become aware of messages in which one employee informed the other of her dissatisfaction with the company. Among other things, the employees saw the inspection as a violation of their fundamental right to data protection.

In a nutshell, however, the Supreme Court is of the opinion that the employer has a legitimate interest in inspecting the professional e-mail account of a former employee and reading messages that are not recognizable as private at first glance, if this was necessary to maintain operations after the employee left the company because it contained customer and contractual partner communication. In particular, if, as was customary in the specific case, the employees were granted access to the e-mail accounts of their predecessors because they contained communication with customers, it must be expected that the e-mail account would be inspected for the purpose of continuing the company’s communication, insofar as messages are not recognisable as private. Against this background, the claim was not granted, as the employer’s interests in the inspection outweigh those of the employee in the protection of her personal data and her privacy. Accordingly, there is also no claim for non-material damages due to the inspection of the e-mail account and the reading of a private e-mail (which is not recognizable as such).

 

For further information, please contact:

Hanna Lemberger, Lawyer

Zumtobel + Kronberger, Salzburg

e: lemberger@eulaw.at

t: +43 662 62 45 00

 

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