Is the employer allowed to read an employee’s e-mail?
E-mail communications are confidential. However, the employer is permitted, subject to certain conditions, to search for or open messages sent to or from an employee’s e-mail address.
Employees must seek to ensure that reading the e-mail messages of employees will not be necessary. To this end, the employer should give the employee the opportunity to take the following measures:
- Employees can use an automated out of office message to announce their absence, its duration and their possible substitute to senders of e-mail.
- Employees can forward the messages to another person approved by the employer or to another e-mail address used by the employee and approved by the employer.
- Employees can give their consent for another person selected by the employee and approved by the employer to receive their messages during their absence. In this way, it is possible to determine whether the messages contain something that the employer must be made aware of with regard to business operations or the arrangement of duties.
Searching for e-mail messages
Employees may have been sent messages belonging to the employer during or just before their absence. Such e-mail includes messages that the employer needs to conclude negotiations, serve customers or safeguard its operations. The employee may also have sent such messages immediately prior to his or her absence.
The employer may have the right to search for messages belonging to it from the employee's e-mail in the following cases:
- The employee performs his or her tasks independently and the employer does not have a system for recording or otherwise keeping track of the matters managed by the employee and their progress.
- The employee’s duties and pending matters make it evident that e-mail belonging to the employer has been received or sent.
- The employee is temporarily prevented from performing his or her duties, and the messages belonging to the employer cannot be obtained by the employer even though it has taken care of its statutory obligations.
- The employee’s consent cannot be obtained in a reasonable time and the matter cannot wait.
With the help of the system administrator, the employer can search for messages by their sender, recipient or subject. The sender, recipient and subject data may not be processed more extensively than is necessary for finding the message.
A report must be drawn up of the search for the message and signed by those who participated in it. The report must indicate the reason for the search, when the search was made and who performed it. This report shall be delivered without undue delay to the employee whose e-mail was searched.
The persons who took part in the search may not disclose the information they obtained during the search to third parties during or after their employment.
Opening e-mail messages
The employer may have the right to open a message sent or received by an employee. Opening the message is permitted if, after searching for and finding the message, it is evident that the employer needs to know its contents in order to conclude negotiations, serve customers or safeguard its operations.
The message may only be opened if its recipient or sender cannot be contacted in order to determine the contents of the message or have it sent to an address indicated by the employer.
The employer is permitted to open the message with the help of the information system's administrator and in the presence of a witness.
A report must be drawn up of opening the message and signed by those who participated in it. The report must indicate which message was opened, why and when, who opened the message and who was notified of its contents. This report shall be delivered without undue delay to the employee whose e-mail was opened.
The opened message must be kept and its contents or sender data may not be processed more extensively than is necessary for the purpose for which it was opened. The persons who took part in opening the message may not disclose the information they obtained to third parties during or after their employment.
Employee e-mail at the end of employment
Employees have the right to demand the closing of their work e-mail account at the end of their employment. When the employment relationship has ended, there is no legal basis for processing the employee’s e-mail account anymore, so the employer is required to close the employee's e-mail address in order to minimise communications. As provided for in sections 18–20 of the Act on the Protection of Privacy in Working Life, keeping the e-mail address open after the termination of employment and redirecting messages with the forwarding function requires the employee's consent. The rectification of data should be demanded from the controller. In the first instance, however, the employee should request his or her former employer to close the e-mail address.
Consent refers to any type of freely given, specific, informed and unambiguous indication of the data subject's agreement to the processing of personal data relating to him or her. Consent can be withdrawn at any time. Redirecting and reading work e-mail also requires the employee's consent. The employer bears the burden of demonstrating the existence of consent.
Based on cooperation legislation
Processing the e-mail messages of employees falls under the scope of the legislation on cooperation within undertakings. If the company or public corporation is not subject to cooperation legislation, the employer must afford the employees or their representatives the possibility to be heard before making decisions on such processing.
After the cooperation or hearing procedure, the employer should draw up written guidelines for the use of e-mail and information networks and inform its employees of them.