Furthermore, the directive emphasizes that disproportionate use of cameras in the workplace constitutes a violation of the Privacy Protection Law. This type of violation has administrative, criminal and civil implications. In the field of labor law, this violation is given special expression where disproportionate use of cameras can constitute a circumstance in an employment relationship in which the employee should not be required to continue his work "which, in accordance with section 11(a) of the Severance Pay Law, 5723-1963, grants the employee the right to receive compensation even as a result of his own resignation."
- The accepted perception in labor law, according to which an employee's consent to the violation of his rights does not necessarily reflect his will and free choice, was also expressed in the Authority's directive. Therefore, not every consent of the employee to waive his right to privacy does indeed reflect his free and true will. Accordingly, and in order to enable the formulation of the employee's consent, the guidelines impose on the employer a duty of transparency, which includes the publication of a detailed and clear policy regarding the use of cameras, which will be determined as far as possible in consultation with the employees in the workplace or their representatives. It should be clarified, for the avoidance of doubt, that when it comes to the installation of hidden cameras in areas where the employee's right to privacy is recognized, the employer is almost absolutely prohibited from installing cameras except in exceptional circumstances, to the point of extreme and unique circumstances that justify such use. In this context, it was emphasized that even when the employee's consent in principle was given to the use of the cameras in these places, this does not make the documentation permissible or legitimate.
- We note that as with all administrative guidelines, the directive in our case is intended to guide the manner in which the authority exercises its discretion when deciding in the individual case before it. Although the status of this directive is not a binding law (see also: Yoav Dotan , Administrative Guidelines 28-39 (1996)), it is correct to view the guidelines as an additional source for understanding the limits of the right to privacy in the workplace in our case.
- 3. Privacy in the Workplace - The World
- The rapid development of technological means that enable employee tracking, along with the development of the labor market in general, brings the issue of employee tracking to the doorsteps of courts around the world on a regular basis.
- 3.I. Development of the status of the right to privacy
- In American law, the trend in case law avoids recognizing the right to privacy as a basic right. Like all human rights, it is measured by a person's freedom to protect his property from government interference, and therefore it is usually interpreted as a derivative of the Fourth Amendment to the Constitution, which protects citizens from illegal searches by the government.
- In 1890, Warren and Brandeis dunked in their seminal article (Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 L. Rev. 193 (1890).) the concept of "the right to be left at rest." According to this article, the right to privacy derives from a person's right to live his life without unnecessary interference.
- In 1928, in his capacity as a judge, in a minority opinion (Olmstead v. United States, 277 U.S. 438 (1928)) Brandeis went on to lay the foundations for the modern conception of the right to privacy, according to which the U.S. Constitution was intended to protect citizens from infringement by the government on their right to leave at rest. Out of this ambiguity, over time, more and more buds began to emerge in American jurisprudence that recognize the right to privacy as an "implicit" constitutional right (Griswold v. Connecticut, 381 U.S. 479 (1965)). Today, the key principle for examining the violation of privacy is the test of reasonable expectation of privacy , which was developed in the case of Katz v. United States, 389 U.S. 347 (1967).
- Unlike in the United States, in Europe the right to privacy is enshrined in the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter: "ECHR" or the "European Convention"). Article 8 of the Convention states in its language as follows:
"Right to respect for private and family life