The issue that was brought before the court was whether an employer may access employees email messages and submit them as evidence in the course of court proceedings brought by the employee against the employer. Typically, the employer wishes to present evidence obtained from the employee's email account, in an effort to dismiss 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 to 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 prerogative, the employer should set a balanced policy for use of the corporate IT and email 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 email account allocated by the employer to an employee and an employee private email 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 which include access to a personal account, and to personal content in such account.
- An employer may not monitor or access an employee private email 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, that courts grant on rare occasions.
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, adequate consent processes and to harmonizing the corporate information security system and policies with a new pro-privacy workplace environment.
Labor Appeal no. 90/08 Tali Isakov Inbar v. The Commissioner for women labor, deleivered on February 8, 2011. Click here to read the full decision (in Hebrew).
For further details contact Dan Or-Hof, CIPP, at Pearl Cohen Zedek Latzer.