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Israeli Supreme Court Adopts Employee Email Privacy Rules

August 23, 2016

In two separate rulings, the Israeli Supreme Court adopted employee privacy rules similar to those earlier established by Israeli labor courts.

The Zinger v. Yahav Hamias Technology case involved an employment dispute, in which Zinger, (the “employee”) had allegedly acted as a “Trojan horse” from within Yahav Hamias Technologies Co. (the “company”), passing on sensitive information to a competitor. The company asked the court to permit the admittance of emails extracted from the employee’s email account as evidence. The company claimed they had legitimately viewed the emails as the email account was left opened on the employee’s computer. The employee objected to this as he claimed that the emails were accessed illegally. The District Court rejected his claims in an interim decision and the case was brought before the Supreme Court.

The court relied on the factual position presented by the company that the emails were discovered unintentionally, although the court ultimately rejected this position as the emails, dated differently could not all have been open on the employee’s computer at the time of the discovery. In a previous decision by the National Labor Court, in Tali Iskov v. The State of Israel, it was ruled that an employer may not monitor an employee’s private email, even if accessed through his employers property, while a work related email account may be monitored as long as the employee had previously given his consent.

In the Zinger case, the Supreme Court considered whether the employee’s act of leaving his email account open on his work computer could be considered consent to read his emails. The court ruled that when private correspondence is concerned, even when left in a public area, it cannot be inferred that its owner intended to give access to it, and rather it may be assumed that the it was left unintentionally. Furthermore, it may be assumed that one’s virtual space contains sensitive material, and is therefore considered to be private, thereby infringing on the employee’s privacy rights. The court did however note that the privacy rights are balanced against a legitimate business interest that the employer may have in monitoring the emails.

In a later ruling by the Supreme Court in Ramat Ltd. v. Rami Shamir, the situation was not a standard employer-employee relationship, as the employee (Shamir) was engaged through a company owned by him. As part of the services provided to Ramat, Shamir received an email account from Ramat, and in the dispute between the parties Ramat wanted to present emails retrieved from that account. The Supreme Court court rejected an appeal by Ramat asking to enter the emails found on its servers as evidence.

The Supreme Court, yet again adopting the Isakov ruling, held the although there were no actual employer-employee relationship, the services of Shamir were similar  to those of an employee (citing facts such as receiving an office at Ramat, and a Ramat computer and email account), and since the relationship established was more than merely that of a service provider, the Isakov standard should apply. Additionally, the court ruled that the employer’s property rights pertaining to the server on which the emails were stored, does not trump privacy rights.


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