The new guidelines issued by the Registrar of Databases of the Ministry of Justice address the use of cameras in public and private workplaces. The central issue which has arisen in this respect concerns the limits on the protection of privacy of the employee and the balance of conflicting interests which justify the placing of cameras in the workplace.
In the draft guidelines, which have been published for public comment, the Israeli Law Information and Technology Authority (ILITA) explains the difficulties involved in placing cameras in a continuous manner in the workplace. It is pointed out that a video camera is capable of documenting in a broad and continuous manner, and to include sensitive information and harm the privacy of the employee. Accordingly, it is mentioned that the employee cannot enjoy a moment of peace where he can feel free without an external viewer. In addition the filming of employees enables the retrospective study of their activities and the cross referencing of information with digital facts as well as others which are retained about the employees, so as to create sensitive information about such employees.
In the Isakov Case, a judgment which was handed down in the context of tracking on employee email correspondence, it was decided that employees are entitled to some private space in the workplace. It was also decided that the employer is obliged to inform the employees as to the organization's policies on monitoring information. The new draft guidelines seek to draw on the Isakov case and provide that the administrative prerogative of the employer to decide on the use of tracking technologies in the workplace is subject to requirements of reasonableness, proportionality, good faith and fairness, and the need to respect the employees' right to privacy.
The employer is required to act in accordance with the principal of legitimacy set forth in the guidelines. Namely, to use information which is collected only for purposes necessary for the workplace which are defined from the outset and which meet the business purposes of the employer or which are provided by law. The legitimacy requirement is likely to involve protection of the security of those present at the business, property protection, protection of sensitive information, maintaining quality of customer services. Use of cameras for any other purpose than that which is defined from the outset is not lawful even if the purpose would otherwise be legitimate. An excessive use of tracking technologies is likely to expose the employer to administrative, civil and criminal sanctions, for breach of the protection of privacy law.
In addition, the employer is required to be transparent in its activities and to receive the informed consent of the employees as to the manner and scope of use of tracking cameras and their purposes. These factors are to be determined after consultation with the employees or their representatives and will presented thereafter in a transparent manner. The employer is required to refresh its policies on this from time to time, as may be required.
It is emphasized that in areas where the employee has a right to personal privacy, it is forbidden to film the employee without his knowledge and the installation of hidden cameras is forbidden even if the underlying purpose is legitimate. Thus it is clear that filming in the bathroom or shower room is forbidden, as well as filming in the office or work station of the employee or in a place which is not open to the public. The private space should be free from regular monitoring. By contrast, it is possible to install hidden cameras in public areas in the workplace, so as to seek – for example - to prevent customer theft, but even so employees need to be notified of this.
References: Draft Guidelines of the Israeli Law Information and Technology Authority in the Ministry of Justice, 'Use of Tracking Cameras in the Work Place and within the Employment Relationship' – published for public comment (28.8.2016).