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The unlawful use of surveillance cameras to monitor employees in the workplace exposes the Israeli employer to civilian (including employment related and tortious), administrative and criminal action. The Registrar of Databases acting for the Authority for the Protection of Privacy ("the Registrar") operating under the Protection of Privacy Law of 1981 (the "Law") has recently published a new directive on the use of surveillance cameras installed in the workplace for the purpose of monitoring employees (the "Directive"). In deciding related cases, the courts have recognized the Registrar's authority to publish directives to guide the public, and the Registrar itself in taking decisions in concrete cases. Therefore, the provisions of the Directive are well worth reviewing. The following main points are worth noting:
The monitoring of employees in the workplace, as well as by camera surveillance, raises issues of privacy.
The right of privacy in Israel is a constitutional right. Israel has adopted the Organisation for Economic Co-operation and Development's approach, which recognizes an employee's right to privacy in the workplace and also in the use of the employer's equipment and systems. Thus, an employer's right of ownership of the premises, equipment and workplace systems does not preclude an employee's right to privacy.
Surveillance cameras are fundamentally different from other known means of monitoring employees in the workplace (which also raise issues of privacy), in that they record, on a continuous and all-inclusive basis, all of an employee's activities including those of private nature. Surveillance cameras enable an employer to review its employee's past conduct and crosscheck the data with information received from other sources. Therefore, surveillance cameras in the workplace are severely invasive of an employee's right to privacy.
The videos or photos taken by surveillance cameras can be considered "data" and the collection or storage of these can be considered a "database" (of private and sensitive information as may be "captured" by video or photos), as defined in the Law with respect to which there are additional specific compliance requirements.
An individual may consent to waive their right to privacy, in which case no violation of the right to privacy occurs. In general, in order for consent to be valid it must be informed and freely given. In other words, the lawfulness of the invasion revolves on the validity of the consent. The legal discourse on the monitoring of employees in the workplace revolves largely on the issue of an employee's consent, and the Directive is mostly concerned with this issue. Due to the power gap between the employer and the employee, the courts have imposed a significant burden on an employer to establish that it has received an employee's informed and free consent to waive the right to privacy in the workplace, the content of which is laden with public policy considerations. The employer must ascertain that the measures taken duly comply with the tests of reasonableness, proportionality, good faith and fairness, as adopted and applied by the courts, and it cannot rely, in this regard, on sweeping contractual provisions waiving the right of privacy and permitting the use of surveillance cameras.
All of the above-mentioned tests are measured against the concrete legitimate purpose defined by the employer, and may vary accordingly. Legitimate purposes in this regard are generally defined as those necessary to forward the employer's business interests and or to fulfill its obligations under law. Legitimate purposes include the security of employees and visitors in the workplace, the security of the workplace as a whole, including stored data, quality control and the monitoring of employees' performance for disciplinary purposes.
The use of surveillance cameras for a purpose that deviates from the purpose originally defined is unlawful, even if the new purpose had been originally defined lawfully, since the requirement of informed consent cannot be regarded as having been complied with. Thus, videos taken for the purpose of client surveillance cannot lawfully be used for disciplinary purposes such as monitoring the length of an employee's lunch break.
An employer must establish a specific and detailed policy with respect to the use of surveillance cameras and it must notify its employees of this policy. Such a policy is necessary for establishing that the employer has obtained the employees' informed consent.
To the extent possible, an employer is required to consult with its employees, or with its employees' representatives, in establishing the policy.
The policy should be reviewed and updated from time to time in order to adapt to developments and to ensure the employees' continuous awareness of the policy.
The Directive offers some useful criteria for measuring the lawfulness of surveillance cameras, one of which relates to the area in which the camera is installed. The Directive establishes some general rules in this regard, as follows:
The Directive supplies some concrete examples of various areas in the workplace and details what it considers as an employee's reasonable "expectation of privacy" with respect to each of them:
Additional criteria in measuring the lawfulness of an employer's actions are the availability of effective alternative measures that are less invasive of an employee's privacy and also, whether in the planning and use of surveillance cameras, the employer has carefully considered and defined the scope of the area to be covered, the number of cameras to be used, the times of surveillance, the quality and resolution of the photos and the period for which the photos are to be kept.
Shoshana Gavish is an attorney with S Horowitz & Co. in Tel Aviv, Israel. © S Horowitz & Co. All rights reserved. Reposted with permission of Lexology.
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