The Federal Labour Court (Bundesarbeitsgericht - BAG) has ruled that a trade union with collective bargaining competence may contact employees via their company email addresses with advertising and information. This applies even if the employer has prohibited the use of the email addresses for private purposes.
The decision of a trade union to address employees in this way is part of its freedom of activity protected by Article 9 (3) sentence 1 of the Basic Law. Insofar as the employer's fundamental rights are affected, the conflicting legal positions must be weighed against each other. The employer's right to property protected by Article 14 (1) of the Basic Law and his right to his established and practised trade covered by Article 2 (1) of the Basic Law must take a back seat to the trade union's freedom of activity as long as the sending of e-mails does not lead to significant disruptions of business operations or noticeable economic burdens attributable to the trade union. The employer cannot invoke the employees' personal rights in the context of a claim for injunctive relief in tort against the trade union.
The First Senate of the Federal Labour Court therefore dismissed - in contrast to the previous instances - the action brought by a service company in the field of information technology seeking to prohibit the trade union ver.di from sending e-mails to the company e-mail addresses of its employees. The employer had not submitted any evidence of disruptions to business operations or measurable economic disadvantages.
Federal Labour Court, Judgement of 20 January 2009 - 1 AZR 515/08 - Previous instance: Hessian Regional Labour Court, Judgement of 30 April 2008 - 18 Sa 1724/07 -
Source: Press release of the BAG No. 8/09 of 20.01.2009
Goldberg Attorneys at Law
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law (IT law)
E-mail: m.ullrich@goldberg.de
