Why E-mails must be archived?
e-mails have become an indispensable part of corporate communications and commerce. Whether invoicing, ordering or in-house information sharing, everything can be done by mail. That e-mails now constitute a highly relevant and legally binding documents and must be carefully archived so few know.
The e-mail as a legally relevant document
The e-mail is often underestimated in its entirely legal significance or be relatively non-binding. This is totally unjustified, as contained in an email statement or information is absolutely right relevant. You come to the business basically the same legal status as their counterpart in paper form. Therefore apply to the preservation of electronic mail is a number of legal provisions, which were initially designed for traditional mail.
Legal provisions
There are a number of rules, which are spread through various laws. In particular, the Commercial Code (HGB), the Tax Code (AO) and the Federal Data Protection Act (BDSG) and include direct action obligations with respect to the e-mail archiving.
writes in § 238 para 2 HGB before the legislature for a merchant to stock a copy of the sent "Business letters" to retain and safely store (either in paper form, as a graphic or text file). As is understood by a commercial letter of each letter, which is "the preparation, completion, implementation, or even the cancellation of a business" (cf. Bonner manual accounting, § 257, para 34), is thus also in the entire e- mails held business correspondence of a company affected.
The same applies to the incoming electronic mail. Under § 257 l No. 2 of every merchant is required to keep trading orderly received letters. The requirement to archive e-mails will be given for each Kaufmann (see § § 1,2,3 HGB), for commercial companies, registered partnerships and legal persons within the meaning of § 33 HGB. In contrast, the e-mail archiving requirement does not apply to non-merchants, such as small businesses and freelancers.
According to § 147 AO addition to the commercial and business letters are also those who dispatched e-mails kept, in fiscal respects. A violation of the above accounting duties may have sensitive consequences. Thus, an intentional or negligent violation of the accounting requirement is an offense within the meaning of a tax risk in accordance with § 379 AO.
Conclusion
Careful archiving of e-mails and so is every company not just a free supplementary measure but rather a legal necessity. Violations have forced serious consequences and can result in a company in the worst case in the bankruptcy. Therefore, it is more than recommended to provide clear rules for the use and archiving of e-mails in the company.
retention periods
According to § 147 AO must be kept to be classed as commercial or business letters e-mails six years. If the e-mails the other hand, accounting documents, invoices, budgets, financial statements or management reports mentioned amount to the retention periods of 10 years. guaranteed
regard to the type must be a forgery-proof permanent storage of data in electronic form and its searchability and retrievability. Preferably the law has no specific method of storage. You need only ensure that the e-mail during the duration of the retention period are available at any time, without delay, be made readable and can be evaluated by machine.
implementation options
central storage of all emails?
To meet these requirements are the obvious way of central storage of all "corporate" e-mails. Such a central archive, but then met with reservations, when the company allowed its employees the use of e-mail inbox, even for private purposes. Provides you namely the in-house Internet access for non-operating (ie private) purposes, the company will in this case, business-like provider of telecommunications services.
The company is then subject to legal obligations under the Data Protection Act (BDSG) and the Telecommunications Act (TKG). Thereafter, a monitoring and storage of private e-mails are not allowed. In this case, a central storage of all e-mails, including private, not with the law compatible and could lead to severe sanctions.
Solution 1: Total prohibition of private mails
A possible solution to this problem would be to ban private e-mail traffic completely. At least from a legal point of view this seems the ideal solution: The company is not to the provider, privacy, then plays no role. Thus, legal uncertainty for employers and workers and avoid spam filters, proxy access, archiving and monitoring of abuse are possible. The company then has the right course, arbitrary and unlimited access to the e-mails of employees or to archive.
problem: Aside from the fact that such a total ban is not just promoting effect on the working atmosphere, it would in practice be enforced and sanctions for infringement. Should it be treated more tolerance, this would legally permit the same.
Solution 2: unconditional permission to private e-mails
would also be conceivable for an unreserved permit private e-mail traffic under the assumption be that private e-mails without evaluating the content separate from business prior to filing and not archived. This variant would seem to be technically very difficult and costly.
Solution 3: The intermediate solution - conditional permit private e-mails
Finally, on an interim solution. The employees could be defined in detail in what way it can be communicated via E-mail privately through the company's internal IT infrastructure. One option would be use only during breaks and a free email account (like web.de or gmx.de) or the Permanent separate mail addresses for private use. Also could give employees the duty to pay, private e-mail clearly marked as such (something already in the header).
Conclusion:
business-related e-mails should at best ten years the legal Arrangements will be archived accordingly. Regardless which way to archive e-mails from being used is: should be defined clearly and unambiguously in each company, to what extent the private use of e-mail accounts is permitted or not.
The e-mail as a legally relevant document
The e-mail is often underestimated in its entirely legal significance or be relatively non-binding. This is totally unjustified, as contained in an email statement or information is absolutely right relevant. You come to the business basically the same legal status as their counterpart in paper form. Therefore apply to the preservation of electronic mail is a number of legal provisions, which were initially designed for traditional mail.
Legal provisions
There are a number of rules, which are spread through various laws. In particular, the Commercial Code (HGB), the Tax Code (AO) and the Federal Data Protection Act (BDSG) and include direct action obligations with respect to the e-mail archiving.
writes in § 238 para 2 HGB before the legislature for a merchant to stock a copy of the sent "Business letters" to retain and safely store (either in paper form, as a graphic or text file). As is understood by a commercial letter of each letter, which is "the preparation, completion, implementation, or even the cancellation of a business" (cf. Bonner manual accounting, § 257, para 34), is thus also in the entire e- mails held business correspondence of a company affected.
The same applies to the incoming electronic mail. Under § 257 l No. 2 of every merchant is required to keep trading orderly received letters. The requirement to archive e-mails will be given for each Kaufmann (see § § 1,2,3 HGB), for commercial companies, registered partnerships and legal persons within the meaning of § 33 HGB. In contrast, the e-mail archiving requirement does not apply to non-merchants, such as small businesses and freelancers.
According to § 147 AO addition to the commercial and business letters are also those who dispatched e-mails kept, in fiscal respects. A violation of the above accounting duties may have sensitive consequences. Thus, an intentional or negligent violation of the accounting requirement is an offense within the meaning of a tax risk in accordance with § 379 AO.
Conclusion
Careful archiving of e-mails and so is every company not just a free supplementary measure but rather a legal necessity. Violations have forced serious consequences and can result in a company in the worst case in the bankruptcy. Therefore, it is more than recommended to provide clear rules for the use and archiving of e-mails in the company.
retention periods
According to § 147 AO must be kept to be classed as commercial or business letters e-mails six years. If the e-mails the other hand, accounting documents, invoices, budgets, financial statements or management reports mentioned amount to the retention periods of 10 years. guaranteed
regard to the type must be a forgery-proof permanent storage of data in electronic form and its searchability and retrievability. Preferably the law has no specific method of storage. You need only ensure that the e-mail during the duration of the retention period are available at any time, without delay, be made readable and can be evaluated by machine.
implementation options
central storage of all emails?
To meet these requirements are the obvious way of central storage of all "corporate" e-mails. Such a central archive, but then met with reservations, when the company allowed its employees the use of e-mail inbox, even for private purposes. Provides you namely the in-house Internet access for non-operating (ie private) purposes, the company will in this case, business-like provider of telecommunications services.
The company is then subject to legal obligations under the Data Protection Act (BDSG) and the Telecommunications Act (TKG). Thereafter, a monitoring and storage of private e-mails are not allowed. In this case, a central storage of all e-mails, including private, not with the law compatible and could lead to severe sanctions.
Solution 1: Total prohibition of private mails
A possible solution to this problem would be to ban private e-mail traffic completely. At least from a legal point of view this seems the ideal solution: The company is not to the provider, privacy, then plays no role. Thus, legal uncertainty for employers and workers and avoid spam filters, proxy access, archiving and monitoring of abuse are possible. The company then has the right course, arbitrary and unlimited access to the e-mails of employees or to archive.
problem: Aside from the fact that such a total ban is not just promoting effect on the working atmosphere, it would in practice be enforced and sanctions for infringement. Should it be treated more tolerance, this would legally permit the same.
Solution 2: unconditional permission to private e-mails
would also be conceivable for an unreserved permit private e-mail traffic under the assumption be that private e-mails without evaluating the content separate from business prior to filing and not archived. This variant would seem to be technically very difficult and costly.
Solution 3: The intermediate solution - conditional permit private e-mails
Finally, on an interim solution. The employees could be defined in detail in what way it can be communicated via E-mail privately through the company's internal IT infrastructure. One option would be use only during breaks and a free email account (like web.de or gmx.de) or the Permanent separate mail addresses for private use. Also could give employees the duty to pay, private e-mail clearly marked as such (something already in the header).
Conclusion:
business-related e-mails should at best ten years the legal Arrangements will be archived accordingly. Regardless which way to archive e-mails from being used is: should be defined clearly and unambiguously in each company, to what extent the private use of e-mail accounts is permitted or not.
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