Fundamental ruling On 18 September 2015, the Court of Aarhus ruled that it was a criminal offence when two executive officers at Aarhus Havn read the text messages of three crane drivers.

The Court ruled that a former executive officer and a works manager had violated the provisions on mail secrecy by having read a crane driver's text messages on his work cell phone.

The two executive officers found that the text messages were so incriminating that three crane drivers were dismissed summarily. Two of the crane drivers were elected work environment representatives by their colleagues. Work environment representatives must point out an unacceptable working environment to the management on behalf of their colleagues. This was an important element of the charge.

EMPLOYER-PAID PHONE, BUT WITH A RIGHT TO USE THE PHONE FOR PRIVATE PURPOSES

The employees were entitled to use the phone for private purposes, and they paid tax on the phones.  The question was whether mail secrecy had been violated when the executive officers had checked the correspondence between the two colleagues. Is a text message the same as a letter, which is generally of a private nature?

NEW CELL PHONE MADE IT POSSIBLE FOR THE EMPLOYER TO READ THE TEXT MESSAGES

In the autumn of 2012, there was a long-term industrial dispute at Aarhus Havn, where the employee representatives felt that management was tough. In November 2012, a working environment representative had to change his phone, which was handed over to a superior.

The old phone was then reviewed by two executive officers, who emptied the phone of almost 1,000 text messages.

READING RESULTED IN SUMMARY DISMISSAL

The owner of the phone and two other employees were dismissed summarily as the management was of the opinion based on the text messages that three crane drivers had bullied a colleague, who was going to take on overtime work, and as the management was also of the opinion that the three crane drivers had acted disloyally towards the employer. Subsequently, the summary dismissals were changed to voluntary severance schemes, but together with 25 colleagues, the three crane drivers chose to report the management to the police claiming violation of the Criminal Code's provisions on mail secrecy.

AND NO - AN EMPLOYER MAY NOT READ TEXT MESSAGES

The Court ruled that the executive officers were not to read the employees' text messages. The Court therefore verified that the executive officers were not entitled to read the text messages according to the legislation on mail secrecy. However, the management was exempted from punishment but has to pay half of the legal costs.

OUR OPINION

A sealed message is clearly "a sealed message" even if the employer is paying for the phone. The result would probably have been different if the employees were not allowed to use the phone for private purposes.

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Marianne Lage

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