- 2.I. On the Isakov Affair and the Tests Established in it
- In summary, we would like to preface by noting with regard to the Isakov case, which in our opinion constitutes a milestone in the balance between the employee's right to privacy and the employer's rights to property and the management of his business, that it discusses the question of the legality of employers' intrusion into the email inboxes of their employees and the use of the information obtained as a result. This court ruled, in the specific circumstances of the case, that penetration into an employee's personal content, which is in his e-mail box, requires explicit, informed and voluntary consent, and that implied consent is insufficient. It was held that the employer is obligated to inform its employees clearly and transparently of the supervision policy, as well as to use proportionate measures that violate the employee's privacy in a minimal manner.
- Below we will briefly explain, and in the relevant part of our case, the tests and principles established in the Isakov case:
- The obligation to establish a clear policy and code of conduct: The employer must establish an explicit policy regarding the use of the computer and the organization's systems, including the definition of what is permitted and prohibited for employees. This policy should include clear guidelines regarding personal use, the manner in which employees' activities in the information systems are supervised, and the consequences of deviating from the policy outlined by the employer in the workplace. The employer must ensure that every employee is exposed to these rules and understands their meaning.
- The principle of legitimacy: This principle is concerned with restricting surveillance and use by the employer for essential work-related purposes. In other words, and a little more broadly, it is stated that the supervision of workers' activities must be limited to essential purposes that are directly related to the proper functioning of the workplace. Collecting information and tracking employees is permitted only where there is a substantive justification related to operational needs, information security, or alternatively, the prevention of harm to the workplace.
- The principle of proportionality: Supervision of the use of a computer must be carried out with a balance between the needs of the employer and the employee's right to privacy. The employer must choose less intrusive means ("encroacher") that have the power to enable the employer to achieve its goals, and thus avoid sweeping or unnecessary methods of supervision.
- The principle of convergence of purpose in the collection of information and the restriction of its use: The employer is obligated to collect information only for the purpose for which he was permitted to do so, and he is not permitted to use the information collected for other purposes or unrelated to the purpose. Thus, for example, and for the sake of clarity, if the employer carried out surveillance for the purpose of information security ("information security"), it should not use the data arising from the surveillance for the purpose of evaluating the employee's performance or for any other purpose other than that defined, and without legal and moral justification.
- The principle of transparency: This principle is concerned with bringing workplace policy to the attention of employees. In other words, the employer is obligated to ensure that the rules for the use and supervision of the information that the employer wishes to follow are brought to the attention of the employees in a clear and transparent manner. The employer must inform its employees of the manner of the surveillance, its objectives, the types of information collected during it, and the use that will be made of it if it is decided that it will be used. The employer must emphasize that the policy is intended to maintain a fair balance between the needs of the organization (the employer's property and the managerial prerogative in his possession) and the individual rights of the employees (the right to privacy).
- 2.II. Placing cameras in the workplace
- In the literature, the question arose as to the extent of the restriction on the employer in placing cameras in the workplace. In the book by Judge Dr. Yossi Rahamim and Attorney Tamir Kedmi, it is written at length and in application of the case law on the subject relevant to our case, regarding the various considerations that stand in this issue:
"Section 2 of the Protection of Privacy Law states that photographing a person while in the private domain constitutes an infringement of his privacy. With regard to the employee's right to privacy in the workplace, the question of the scope and meaning of the phrase "individual domain" is sharpened.