INTERNET LAW - Israeli Labor Tribunal Sets forth the Scope of Employee's Privacy in Email

IBLS Contributor: Odia Kagan Tel Aviv, Israel, odia@okaganlaw.com
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An employee's right to privacy in his email correspondence in the workplace is not absolute. The Israeli Regional Labor Tribunal sets forth criteria for answering the question: When may an employer read his employees' email.

Before email overtook our lives and became the communications method of choice even when the sender and the recipient are in adjacent room, matters of certain sensitivity were left to be discussed in person and not over the telephone. A judgment handed by the Israeli Regional Labor Tribunal of Tel-Aviv Jaffa, by the Hon. Judge Sigal Davidov-Motolla, clarifies that these days, such sensitive information should be left out of the email as well - especially when is it email used in the workplace

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An employee's right to privacy in his email correspondence in the workplace is not absolute. The Israeli Regional Labor Tribunal sets forth criteria for answering the question: When may an employer read his employees' email.

Before email overtook our lives and became the communications method of choice even when the sender and the recipient are in adjacent room, matters of certain sensitivity were left to be discussed in person and not over the telephone. A judgment handed by the Israeli Regional Labor Tribunal of Tel-Aviv Jaffa, by the Hon. Judge Sigal Davidov-Motolla, clarifies that these days, such sensitive information should be left out of the email as well - especially when is it email used in the workplace.

The Claimant in the case Tali Isakov-Inbar, worked in the hi-tech company Panaya, and was let go during the year 2006. Ms Isakov filed a claim against the dismissal as it had occurred while she was pregnant (a practice prohibited by law in Israel - O.K). Panaya, on the other hand, argued that the dismissal had taken place several months earlier, before the Claimant became pregnant. In order to prove its claim Panaya intended to submit to the Tribunal copies of emails sent by the Claimant from her work computer (owner by Panaya) and using her work email account. These printouts included emails from which it may be concluded that during the months which preceded the date of dismissal claimed by Ms. Iskaov, she had sent her resume several times and requested help in finding employment from various recipients. In addition, Panaya intended to submit emails showing attempts made by Ms. Isakov to find a replacement for herself.

The Tribunal hearing concerned the possibility of submitting the same emails as evidence. The question arose because evidence acquired through the infringement of privacy or by illegal eavesdropping - is inadmissible in a legal proceeding. With regard to email - in February 2007, the Israeli District Court in the Matter of Philosoph held that intercepting emails en route from the sender to the recipient, even when they are placed in the ISP's servers, constitutes eavesdropping. Furthermore, the Protection of Privacy law states that the usage of contents of a letter not intended for publication without the sender's consent, constitutes an infringement of privacy. Therefore, as Panaya did not acquire a court order for the procurement of the emails - without the Claimant's consent - the evidence would be inadmissible.

Following a thorough discussion of the matter, which has not yet been specifically discussed in Israeli courts, the Tribunal set forth several principles which should be addressed in this matter:

An employee may use his office email for private uses - but reasonably

Due to the long work days and the ever-thinning separation between the workplace and the home, the Tribunal states that it is expected that the employee would be provided the opportunity to deal with his private and social matters in the workplace, provided that it is done in to a reasonable extent. Therefore, the Tribunal states that as long as there is no other agreement or special circumstances, the employee would be permitted to use the work email account provided to him for private uses as well. However, such usage must be reasonable both with regard to the scope of the use and the time spent to this end. This determination is in line with previous case-law which discussed the permissibility of private telephone called and web usage by employees in the workplace.

The employee has the right to privacy in his workplace email correspondence - but it is not absolute

The right to privacy of all Israelis is provided, inter alia, by the Basic Law: Human Dignity and Liberty which prohibits the infringement of the confidentiality of a person's conversation and correspondence. The Tribunal states that the right exists also in the workplace, but only where the employee had an "expectation of privacy". This is the case because employees use computers and telephones which are the property of the employer, email accounts and severs which are the property of the employer and because the employer has significant stakes in the content passing through this correspondence (which may include information which is damaging to him).

In order to answer the question "Does the employee have an expectation of privacy", the Tribunal states that it would be helpful to check also:

Whether the employee knows (expressly or implicity) that his email correspondence may get to the hands of the employer or other employees?

What is the employer's policy? May email inboxes be used for work purposes only or whether some private use is permissible as well?

Did the employee agree to the employer's policy in writing or verbally?

Are the email inboxes protected by the employee's personal password?

Is there a separation between the employee's personal email files and work-related email files?

Are the computer and the email inbox intended for the use of the employee only or is it shared with other employees?

In this matter the Tribunal issues a recommendation to set forth the matter of privacy, email usage and email usage monitoring specifically in employment contracts. Thus, certainty is achieved with regard to the situation and to the employee's consent.

The Employer has the right to monitor the employee's email usage - but proportionally

As the employer has an interest in protecting his property and his business - the employee's right of privacy is not absolute and must be balanced against the employer's right to protect his interests. Therefore the employer has the right to monitor the scope of usage of email (without reading the content of the message).

With regard to the content of the messages - such monitoring will be permissible only when the employer has a substantial specific interest which justifies such inquiry and as long as the inquiry in conducted in a proportional matter. That is to say that an employer would be permitted to check the content of messages only if:

It is done for a purpose serving a true business-related objective and is not just a manner of harassing the employee

Checking the content of the message is a rational way to reach the employer's legitimate objective.

The infringement is minimal and the objective cannot be attained by other means; and

the benefit to be derived from the action outweighs the damage cause to the employee from the infringement

For example - checking email content may be permissible when an employer has a serious doubt that an employee is illegally conveying information to a competitor or cooperating with him, when the employer believes that reviewing the employee's email messages may expose evidence of such actions and when the required information cannot be attained in any other way (e.g. checking public record including the companies' registrar and locating a competing company established by the employee). Even when the only means is reviewing the messages - the employer must attempt to limit the review (review only the heading etc).

And in this case...
In this case, the Tribunal held that the Claimant, Tali Isakov-Inbar, effectively consented to the monitoring of her email by the employer, Panaya. The determination is based, to a great extent, on the particular circumstances of the case and therefore does not necessarily predict the outcome in future cases. Here, the employer had a policy, which was known to the claimant, of monitoring email periodically for viruses etc. In addition, at hand were email messages that were not of a personal nature, some of which included personal and business content together. Finally - the infringement of privacy was done for a specific and significant purpose - the defense from the lawsuit filed.

The Tribunal briefly discussed the matter of the eavesdropping and determined that the relevant messages were stored in the Claimant's computer and in the employer's server, a long time after they had reached the recipient and therefore these are not messages "en route" to their destination (the interception of which constitutes eavesdropping). Rather the matter is more akin to leaving a personal diary in the workplace - and therefore the right to privacy is applicable.

The Author's Name: Odia Kagan

City: Tel Aviv

Country: Israel

Phone: + 972-50-6530555

Fax: + 972-9-9513334

Email: odia@okaganlaw.com

Web Site: www.okaganlaw.com


 

IBLS Contributor: Odia Kagan Tel Aviv, Israel, odia@okaganlaw.com

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