Privacy Advisor

Israeli court restricts monitoring of employee's e-mail

March 1, 2011

By Dan Or-Hof, CIPP

In a 91-page opinion, the National Labor Court laid down a clear set of rules on employers’ rights to monitor their employees’ e-mail messages. The rules impose severe restrictions on those rights and employers should consider reforming their workplace policies accordingly.

The issue that was brought before the court was whether an employer may access employees’ e-mail messages and submit them as evidence in the course of court proceedings brought by the employee against the employer. Typically, employers wish to present evidence obtained from an employee’s e-mail account when dismissing the employee’s claim for unlawful termination. However, a "fruit of the poisonous tree" evidential rule under the Privacy Protection Act prohibits submission of evidence obtained through invasion of privacy.

Chief Judge Nili Arad delivered the National Labor Court's opinion on two appeals from District Labor Courts that reached inconsistent decisions related to the employers' rights in that respect.

The court laid down the following principles:

  • In light of the employer's proprietary interest in the workplace and managerial perogative, the employer should set a balanced policy for use of the corporate IT and e-mail systems. The employer must bring the policy to the attention of the employees and must incorporate the policy into their personal employment contracts.
  • A clear line should be drawn between an e-mail account allocated by the employer to an employee and an employee’s private e-mail account, such as a Webmail account.
  • An employer may allocate accounts to employees and designate them for work-related purposes only (“professional purpose accounts”) or for personal purposes as well (“dual purpose accounts”) or for the employer's personal purpose only (“personal purpose account”).
  • If the employer makes the employees aware of the e-mail monitoring policy, then the employer may monitor the traffic data and contents of professional purpose accounts. However, if an employee uses the mailbox for personal e-mail exchange, even if in violation of the corporate policy, then the employer may access the personal messages in that account only subject to the employee's explicit, informative and freely given consent and only if the contents of such personal messages are unlawful or abusive.
  • The employer may monitor and access personal messages in dual purpose and personal accounts subject to the following terms: (1) There are unusual circumstances that justify access to the messages; (2) The employer first uses less-invasive tools that reveal the monitored employee's misconduct; (3) The employee gives explicit, informative and freely given consent to the corporate policy and specifically to the monitoring of or access to his personal (not work-related) messages; (4) The employee provides specific consent to each access by the employer to the contents of personal messages in a dual purpose account or specific consent for any surveillance activity by the employer that includes access to a personal account and to personal content in such account.
  • An employer may not monitor or access an employee’s private e-mail account, even if the employee uses the workplace IT system to access the account and even if the employee consented to such access. An employee's private account may be accessed only subject to an appropriate court order, which courts grant on rare occasions.

Based on the above principles, the court granted the employees' motions to suppress the evidence in both cases because the employers obtained the evidence while unlawfully invading the privacy of their employees.

Employers should carefully study the opinion and make all necessary adjustments to comply with its requirements. Specific attention should be given to the corporate policies, employment contracts and adequate consent processes and to harmonizing the corporate information security system and policies with a new pro-privacy workplace environment.

 

Dan Or-Hof, CIPP, is a New York and Israeli attorney, a partner and the manager of the IT, Copyright and Internet team at Pearl Cohen Zedek Latzer with specific practice in data protection and privacy law. He may be reached at dano@pczlaw.com.