The Federal Labor Court (BAG) has ruled that a union with collective bargaining authority is permitted to contact employees via their company email addresses for promotional and informational purposes. This holds true even if the employer has prohibited the use of these email addresses for private matters.
A union's decision to engage employees through this channel falls within its freedom of association, protected by Article 9, Paragraph 3, Sentence 1 of the Basic Law (GG). Where fundamental rights of the employer are implicated, the conflicting legal positions must be carefully balanced. The employer's property right, safeguarded by Article 14, Paragraph 1 GG, and their right to an established and operating business, encompassed by Article 2, Paragraph 1 GG, must yield to the union's freedom of association, provided that the email distribution does not cause significant operational disruptions or discernible economic burdens attributable to the union. Furthermore, an employer cannot invoke the personal rights of employees in the context of a tortious claim for injunctive relief against the union.
Consequently, the First Senate of the Federal Labor Court – diverging from the lower instances – dismissed the action brought by an information technology service company. The company had sought to prohibit the ver.di union from sending emails to its employees' corporate email addresses. The employer had failed to demonstrate any operational disruptions or measurable economic disadvantages.
Federal Labor Court, Judgment of January 20, 2009 – 1 AZR 515/08 – Lower Court: Hessian Regional Labor Court, Judgment of April 30, 2008 – 18 Sa 1724/07 –
Source: BAG Press Release No. 8/09 of 20.01.2009
Goldberg Rechtsanwälte
Attorney Michael Ullrich, LL.M. (Information Law)
Specialist Lawyer for Information Technology Law (IT Law)
E-mail: m.ullrich@goldberg.de
