Auswertung des Browserverlaufs durch den Arbeitgeber erlaubt?

There are now hardly any employees who do not have their own work computer or cannot access company PCs. It is often difficult for the company to determine whether employees are using the computer during working hours in accordance with the contract - to fulfill their employment contractual obligations - or in violation of the contract - for private matters (and thus possibly committing working time fraud).
In its latest decision, the Berlin-Brandenburg State Labor Court (LAG) (judgment of January 14, 2016 - 5 Sa 657/15) had to deal with the following questions:

Is it permissible for the employer to evaluate the pages visited by the employee?

and

Does the unauthorized use of the Internet – after weighing up both sides’ interests – justify immediate termination of the employment relationship?

The decision was based on the following facts: The company provided the employee with a work computer. This could only be used for business purposes. Use for private purposes was only permitted in exceptional cases during work breaks. Since the employer suspected that the employee was using his work computer for private purposes during working hours, he evaluated the browser history - without obtaining the employee's consent. It emerged that the employee had used the work computer privately on a total of 5 working days over a period of 30 working days. Based on this finding, the employer issued an extraordinary termination without notice. The LAG Berlin-Brandenburg considered the termination for good cause to be legal. The court also found that in this case the analysis of the browser history was lawful and did not lead to a ban on the use of evidence.

Legality of termination
First of all, it should be made clear that even before the LAG Berlin-Brandenburg's decision, it was the absolutely prevailing opinion that excessive private use of telecommunications facilities (e.g. Internet, e-mail, telephone) during working hours on a regular basis and, if necessary, after prior warning, was a regular or even justifies an extraordinary termination of the employment relationship (BAG dated April 19, 2012 – 2 AZR 186/11). This applies even if private use is expressly permitted or tolerated by the employer. Such permission/toleration generally only covers use that is appropriate in terms of content and time.
The LAG Berlin-Brandenburg has confirmed this opinion and once again expressly stated that the unauthorized use of the Internet - after weighing up the interests of both sides - allows an immediate termination of the employment relationship.
Evaluation of browser history
What is more interesting about the decision is that the court expressly stated that, in principle, an evaluation of the browser history on a work PC that was provided for exclusive business use is permissible and does not entail a ban on the use of evidence. The LAG's opinion is convincing and corresponds to the prevailing opinion in the labor law literature.
To justify the (correct) opinion:
The permissibility requirements for evaluating browser history differ depending on whether private use of the service computer is permitted or not.
Low threshold if no private use is permitted
If the employee is allowed to use the computer exclusively for business purposes, the requirements are based on Section 32 of the Federal Data Protection Act (BDSG). According to this, the employer may only take necessary measures if there are suspicions of a crime. However, it is not bound to the stricter - and possibly punishable - requirements of the Telecommunications Act (TKG).
In the case presented above, private use was prohibited. The court therefore considered the employer's suspicions to be sufficient to take the evaluation measures. The measures were therefore legal and covered by the legal requirements, in particular by Section 32 BDSG.
The European Court of Human Rights also confirmed this legal opinion in a current case (judgment of January 12, 2016 - 61496/08). The Strasbourg judges dismissed the lawsuit brought by a Romanian engineer who had extensively used the company PC privately during working hours and was dismissed - also after the employer's evaluation. As part of this decision, the court expressly stated that the private use of the company computer does not constitute a human right and that the employer's analysis of the data was therefore proportionate and therefore legal.
Significantly higher requirements if private use is permitted
However, the requirements for lawful evaluation of the browser are significantly higher if the service computer is also left for private use. In such cases, the employer is - according to the prevailing opinion - to be viewed as the provider of the services within the meaning of Section 3 No. 6 TKG and, according to Section 88 Paragraph 2 TKG, to protect a fundamental right, namely telecommunications secrecy in accordance with Article 10 Paragraph 1 GG, obligated. Whether and to what extent there are bans on the use of evidence in such cases has not yet been conclusively clarified and has not been decided by the LAG Berlin-Brandenburg. There is therefore still considerable legal uncertainty here.
In this context, it should be noted that an unlawful analysis of such data - as a violation of telecommunications secrecy in accordance with Section 206 StGB (Criminal Code) - can under certain circumstances also be viewed as a criminal offense.
It is therefore recommended that employers make clear regulations as to whether the private use of work PCs should be permitted at all. As a rule, a complete ban on private use is advisable. If private use is possible, at least the scope of use of work PCs must be expressly specified.