By Dan Or-Hof, CIPP
Labor Tribunal Holds Email Messages Inadmissible Because Employee's Privacy Was Violated
Northern Israel's Nazareth District Labor Tribunal recently granted a plaintiff-employee's motion to suppress a number of email messages that were submitted with the defendant-employer's affidavit. The employee claimed that the employer obtained the messages by accessing the employee's work electronic mailbox without the employee's consent, thus violating his right to privacy.
The tribunal held that a user of a computer network in a work environment has a reasonable expectation of privacy, and that the employer may not intercept or access an employee's email messages unless the employee has waived her right to privacy. It was further held that absent an explicit waiver, an implied consent to relinquish the right could not be easily established, regardless of the proprietary rights of the employer in the messages.
The tribunal pointed out the relative character of the right to privacy, and the need to balance that right with the legitimate interests of the employer. In this case, while the employer apparently had justifiable cause to violate the employee's privacy, the potential harm that could be caused to other employees who regularly use email tipped the balance against the employer.
The tribunal's constrictive view on employers' rights to monitor employees' activities was supported by an opinion filed recently in a similar case by the Legal Advisor to the Government, the top prosecutor in Israel. That case is now pending before an appellate labor tribunal.
Both the tribunal's decision and the legal advisor's opinion clearly send the message that Israeli employers must form adequate internal policies and obtain their employees' explicit consent.
Dan Or-Hof is a senior counsel at Pearl Cohen Zedek and Latzer LLP, with specific expertise in data protetion and privacy law. He may be reached at firstname.lastname@example.org.