“Taming of the Shrew” in the Digital Age-Employer Emails and Defamation

July 28, 2018
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The article was published in Afik News 262 01.08.2018

An employee is dismissed due to disciplinary issues. The employer, in order to ensure that the events do not repeat themselves, informs all employees by e-mail of the matter. The employer does that in a broad office distribution to the rest of the employees in order to promote proper work discipline in the workplace. Can the dismissed employee contend defamation?
Defamation is defined under Israeli law as an act of publication to any person (other than the victim), whether orally or in writing, of any thing that may humiliate a person in the eyes of people or to make such person a target of hatred, contempt or ridicule; may degrade a person for acts, behavior or characters attributed to the victim; may harm a person in position, occupation or profession; or may degrade a person because of race, origin, religion, place of residence, age, gender, sexual orientation or disability.
In a number of cases that were brought before the courts it was held that in circumstances where it is necessary to provide an explanation for the dismissal of an employee in order to stop the unrest that has arisen and to reassure employees regarding their employment security, the reasons for termination of employment may be published. However, in a case discussed in June, 2018, in the Israeli National Labor Court, a person in charge of a dismissed employee sent an e-mail regarding the dismissal to a number of employees, stating the employee’s name and elaborating about the dismissed employee severe disciplinary offenses and lack of credibility. The recipients of the message were not requested to maintain discretion and refrain from forwarding the message to others. The combination of the personal focus on the employee’s identity in order to convey the message to the other employees of the company, the potential distribution of the publication and the fact that it was done in writing was held to be deviating from the test of proportionality and was not justified, regardless of whether the publication was true.
The Court noted that in the digital era, the obligation to be cautious about messages transmitted to employees via e-mail or similar applications is increased, both because of the risk of transmitting messages in such a way as to increase the harm to the victim and because such a publications is usually pre-planned and in writing, unlike a spontaneous conversation. A publication of this type gives the ability to carefully select words and consult as to the wording as well as ensuring accuracy of the publications attributed to the employee.
Thus, it is crucial that employers consult with a lawyer knowledgeable in the field as to whether in case they want to promote a forward-looking message in the company they should have oral or written conversations with employees. It is certainly advisable to confirm with a lawyer the manner in which the message is formulated and the list of its recipients.