BAG ruling from 27.04.2021 - 2 AZR 342/20
In proceedings that we conducted on the employer's side across all instances, the Federal Labor Court ruled that a former employee cannot simply sue for a copy of all emails containing personal data about him. We supported the proceedings as part of an employment law/data protection law task force with partners Dr. Max Wellenreuther (employment law) and Dr. Christian Wolff (data protection law).
Meanwhile, the right to information under Art. 15 GDPR, which in para. 3 also provides for the right to obtain "a copy of the personal data undergoing processing", is often used as leverage in employment law disputes without it having been conclusively clarified what this claim actually entails. From the claimant's perspective, it is usually argued that they are entitled to a copy of all processing operations relating to personal data. This is particularly - but not only - relevant in the context of e-mail correspondence. Since the e-mail address of the respective employee is already personal data, all e-mails sent by him, addressed to him or other e-mails in which the employee (or his e-mail address) is even mentioned would also be considered personal data. As a result, the employer is often required to collect and copy all of these emails and make them available to the former employee.
This raises considerable legal concerns and will hardly be feasible in practice within the company. At the center of the discussion is the question of how the right to "a copy" is to be understood. In agreement with some data protection supervisory authorities, we see this right only as a very limited entitlement, which essentially refers to initially providing a copy of structured information on processed data - but not to search out and copy all conceivable data and thus provide the former employee with, among other things, almost all of his business email correspondence.
The lower courts had already denied the former employee's claim. Although the Federal Labour Court has now not commented on the interpretation of the nature and scope of the right to "a copy" under Art. 15 para. 3 GDPR, the decision strengthens the employer's position. This is because the Federal Labor Court found that the claim for "provision of a copy of emails" was not sufficiently specific (Section 253 para. 2 no. 2 ZPO). Rather, the plaintiff would have had to specify the requested emails so precisely that a later enforcement of any judgment would be possible. This was not the case.
In practice, this decision will mean that in future, blanket claims of this type will probably be dismissed at first instance due to a lack of sufficient specificity in the application. Although this is not yet the desired binding clarification of what exactly the European legislator understands by the right to "a copy", it is an important step towards greater legal certainty in dealing with data protection claims for information. In any case, only the ECJ will be able (and allowed) to make a final assessment of the content of the right to "a copy" within the meaning of the GDPR.