Employer may read employees email? Sometimes

(AV 10121/06 Issacov v. Commissioner of the Employment of Women Law. et al., 15.7.2007, Hebrew) Judge Sigal Davidof-Motola, of the Tel Aviv Regional Labor Tribunal, established a new criteria to when an employer may be permitted to read and monitor an employe's email messages. Judge Davidof-Motola ruled that an employer shall be entitled to do so if there is a specific interest that justifies the intrusion of privacy. This intrusion must serve a genuine business purpose and its benefit must outweigh the injury to the employee's privacy. Among the factors that should be taken into account are the employee's expectance of privacy in the corporate email account and the existence of a corporate email-use policy.

The issue was raised as part of a legal suit brought by Mrs. Issacov against her former employer Panaya Ltd. that allegedly she was fired due to her pregnancy and in violation of The Employment of Women Law of 1954 and The Equal Opportunities Law of 1988. At the heart of the dispute was the date of the termination of the Issacov's employment, whether or not it preceded her pregnancy. To this end, the defendant submitted as evidence email messages sent by Issacov from her work email address, to human resources companies with her CV's attached. Issacov opposed this and claimed that her email messages were obtained illegally in violation of the Wiretapping Law of 1979 and the Protection of Privacy Law of 1981. Judge Davidof-Motola rejected these claims and allowed the evidence.

In her ruling the judge cited Israeli case law which acknowledged that the creation of a copy of an email message, between the message's dispatch and its delivery to its designated recipient is tantamount to illegal eavesdropping as defined in the Wiretapping Law of 1979. According to the law, it is illegal for an employer to eavesdrop on an employee's conversation. Israeli case law expanded this prohibition also to reading and copying of email messages. However, accessing email an message stored on a company server or the employee's computer, after the message has been delivered, is similar to reading through personal papers the employee left on the her desk. This example is similar to facts of the present case. Such circumstances are governed by Protection of Privacy Law and their legality is also determined, among others, by the employee's expectancy of privacy.

As a result of this tribunal's decision companies operating in Israel are expected to reevaluate their corporate email policy.