Surfing the internet for private purposes on the office computer during working hours? This is not unusual, but may have serious consequences for the employee according to a current ruling of the local labour court Berlin-Brandenburg, since employers may analyse the browsing history without a need for the employee’s consent.

Facts of the Case

In the case which was the subject matter of the ruling, the employer had provided a computer to the employee for work purposes. The employee was allowed to use the internet for private purposes in exceptional cases during the breaks if need be. Since there were indications for a substantial private use of the internet, the employer analysed the browsing history of the computer without the employee’s consent and found a private use of approx. 5 days in a time period of 30 working days.

The Ruling

In its ruling, the local labour court Berlin-Brandenburg deemed the employer’s subsequent extraordinary termination of the employment relationship without notice to be legally effective. According to the local labour court’s consideration of the mutual interests, the unauthorized use of the internet justifies an immediate termination of the employment relationship. With regard to the browsing history data, there is no exclusion of evidence at the disadvantage of the employer. The data collected by the employer in the course of the analysis of the browsing history would indeed constitute personal data pursuant to Section 3 (1) Federal Data Protection Act (BDSG), and consent to monitor these personal data would not have been given to the employer by the employee. Nonetheless, the court came to the conclusion that a use of the data by the employer is still admissible since the Federal Data Protection Act allows for the browsing history to be saved and assessed for control against abuse also without the consent of an employee. Moreover, in the case at hand, the employer would not have had the option to prove the extent of the unauthorized internet use by other, milder means.

Practice Notes

The ruling significantly facilitates employers’ monitoring of their employees’ private surfing behaviour on company computers if the private use of the internet is limited to exceptional cases and breaks. Previously, it was highly contested whether or not the employer required prior written consent pursuant to the BDSG in order to monitor the employee’s internet use in cases where a use for private purposes was permitted. This is now admissible according to the view of the local labour court, at least if such private use is limited to exceptional cases and breaks. However, since the local labour court has permitted the appeal to the Federal Labour Court and the ruling therefore is not yet legally binding, each employer should still be advised to exclude the use of the internet and the email address for private purposes in order to have unlimited access to the browsing history of the company computers and the mailbox until the ruling has legal effect.

(LAG Berlin-Brandenburg, judgment of 14 January 2016 – 5 Sa 657/15)

Anja Dombrowsky, lawyer, Frankfurt