Ever since the Israeli National Labor Court’s landmark ruling on the Isakov case, we know the Israeli court’s opinion on employers who access their employees’ email accounts: condemnation of the employer and inadmissibility of those emails as evidence capable of proving the employer’s claim, due to the invasion of privacy involved.
But what happens when an employee accesses the employer’s emails? Well, that’s a different story – at least according to the decision delivered by the honorable Magistrate Karmit Peled of the Tel Aviv Regional Court of Labor {4394-05-14 Bloch – Synel M.L.L Payway Ltd., 2.12.2014}.
An employee dismissed from her job filed a lawsuit for wrongful termination and unlawful discrimination pursuant to the Equal Employment Opportunities Law. She included in her lawsuit email correspondences between her direct superior and the company’s Chief Human Resources Officer, as evidence in support of her claims.
An employee dismissed from her job filed a lawsuit for wrongful termination and unlawful discrimination pursuant to the Equal Employment Opportunities Law. She included in her lawsuit email correspondences between her direct superior and the company’s Chief Human Resources Officer, as evidence in support of her claims.
The employer sought to suppress the evidence, on the grounds that they were obtained through invasion of privacy. The honorable Magistrate declined the employer’s motion, using intriguing reasoning, that in law.co.il’s opinion illustrates how one standard applies to employers – and an entirely different one applies to employees:
- The starting point in the analysis is the documents’ relevance and instrumentality, in that they apparently may help decide the dispute. The relevance of these documents would have in any event compelled the employer to disclose them in discovery (law.co.il, with its familiarity with norms of discovery in Israel, is dumbstruck by this reasoning).
- The employer enjoys a significant and fundamental right to privacy, protectable against disproportional violation by employees.
- The correspondences in question pertain to the plaintiff employee and address matters that are clearly work-related. They have nothing to do with the personal affairs of the company’s other employees (law.co.il wonders whether the same would have been said if the dismissed employee had surreptitiously wiretapped a conversation between her superior and the Chief Human Resources Officer).
- The superior’s email account, from which the evidence in question was obtained, is neither a private nor personal email account, but rather a purely professional, corporate email account.
- The definition of invasion of privacy is limited when it is evaluated with respect to a corporation and the scope of protection under law is narrower.
- As part of her job, the dismissed employee was given access credentials to her superior’s email account and calendar, which she administered through her computer. With such access, she could see every email message in her superior’s inbox.
- Nothing persuaded the honorable Magistrate that the dismissed employee was not permitted to copy the messages. Not the fact that the dismissed employee did not routinely access her superior’s emails, but rather only when he requested that she check his emails. Not even the fact that she accessed the messages in question after she had been verbally informed of her termination, and did so by remote access from her home computer.
- The Magistrate was persuaded that the dismissed employee, “after understanding that her employment with the company ended, moved to delete personal files that were on her [work] computer and in the superior’s email account – where there was a personal subfolder (that bore her name) with various Word documents. In order to access the superior’s computer, she used passwords and credentials that were given to her, and with which she used to perform her routine work. In the course of that activity, she randomly came across evidence that automatically popped-up on the screen, because the evidence was the first email in the folder (i.e. the most recent email chronologically). When the email automatically appeared on the screen, the evidence was spread out in front of her.”
Law.co.il wishes to express its opinion: Israeli privacy law does not limit the protection afforded to messages, to merely “personal” messages. An individual’s correspondence is meant to be protected from others to whom it is distinctly not directed. This is precisely the purpose of section 2(5) of the Protection of Privacy Law (“Copying or using, without permission from the addressee or writer, the content of any written message not intended for publication”), and section 2(9) (“Using, or passing on to another, information regarding an individual’s “private affairs” other than for the purpose for which it was given”).
Just like an employer may not introduce into evidence an employee’s email messages demonstrating that she was looking for another job and was not dismissed because of her pregnancy (as in the Isakov case, decided by the Israeli National Court of Labor), so should an employee be prohibited from introducing into evidence emails demonstrating the contrary. The National Court of Labor opined that the employer overstepped the limited permission it had, by browsing the employee’s personal email messages. So did the employee in this case, when she accessed her superior’s computer after she was told of her dismissal. One and the same law should govern employers and employees alike.
Advocate Dror Arad-Ayalon adds that the employee in question intruded into a computer system – the superior’s email account – from her home, after her dismissal, using access codes that were intended for her work during her employment. She obviously took email messages for an entirely personal purpose. This is not only invasion of privacy but also unlawful intrusion into a computer system. In a related judgment by the Israeli District Court for the Central District {13028-04-09 Eliyahu v. Tiberias Municipality}, evidence obtained in this manner was held inadmissible in disciplinary proceedings against an employee of the municipality, and the employee was consequently acquitted.