An employee accesses his private e-mail on a computer at work and neglects to disconnect from it. After the employee leaves the workplace, the employer wants to transfer the computer to another employee and finds, by chance, the open private e-mail box with an open message from which the employer learns that the employee defrauded the employer. Is the employer entitled to copy and use the message?
In the Isakov case heard at the Israeli National Labor Court in 2011the Court differentiated between an e-mail account provided to the employee as part of the employment and a personal e-mail account. The Court held that in the work e-mail the employer has limited monitoring rights subject to the principles of transparency and proportionality. If the e-mail account also contains personal contents, the employer may monitor it in exceptional circumstances, provided that the employee has given express consent to the monitoring. Note that a general consent for workplace monitoring policy is not sufficient to allow the employer to monitor personal content unless a specific agreement was given by the employee. Needless to say, that an employer cannot monitor private e-mail account which is in the exclusive ownership of the employee. Regardless of the other meanings of the violation of an employee's right to privacy, if the employer discovered evidence as a result of the infringement of the privacy rights of the employee, such evidence may not be admissible in a Court of Law.
As opposed to a proactive monitoring carried out by the employer on the employees, in case of an employer accidentally exposed to an open private e-mail message the rule might differ. In a judgment given in May, 2016, the Israeli Supreme Court determined that in the event of an accidental and passive exposure of a private e-mail message, as opposed to an intentional monitoring without the prior approval of the Court (the Court did not discuss such a case), there is no justification to require the employer to receive a judicial order and the employer may use such an e-mail message to protect the employer’s legitimate interests. Accidental exposure to an email message, which can provoke only a vague suspicion of an infringement of a legitimate interest of the employer (as opposed to a message that clearly shows that) is not enough to establish a protection under the law and these messages will not be admissible as evidence in Court.
In light of the Supreme Court ruling it is important to establish that the employer was indeed passively and accidentally exposed to the private e-mail message and that the content of such message clearly invokes the rights of the employer. In any case of a doubt in such situations it is important to consult with an attorney specializing in the field.