Recently, the Database Registrar published a new guideline concerned the installation and use of CCTV cameras in the workplace and within the framework of the employment relationship. This guideline presents the factors which the employer is required to take into account in this respect. The guideline complements the general guideline which was published by the Database Registrar in 2012 concerning the use of CCTV cameras in public spaces.
According to the Isakov case (which was decided in the National Labor Court), the position taken by the Registrar was that the employee does have a right of privacy in the workplace and the proprietary rights of the employer in the workplace and in the equipment which the employee uses there do not derogate from that right of privacy.
Since CCTV cameras record the behavior of employees at the workplace, and within that framework the employees provide (sometimes against their will) personal information about themselves to the employer, the Registrar set forth guidelines which the employers are required to take into account before reaching a decision to install CCTV cameras in the workplace. The main guidelines are as follows:
- The decision to install CCTV cameras in the workplace is subject to requirements of reasonableness, good faith, fairness and proportionality – even if the installation of CCTV cameras is required as a matter of law or by a competent authority.
- Among the factors which are to be taken into account by the employer before the decision is taken to install CCTV cameras in the workplace, are whether there are alternative means of supervision which would involve lesser interference with the employee's privacy; the location of the installation of the cameras and how many are to be installed; the areas and timing of filming; the resolution of the filming and the period during which the information will be retained.
- The installation of cameras and the use of the information found on them is to be limited to specific and legitimate purposes necessary for the workplace which are in line with the business purpose of the employer. These purposes will be brought to the attention of the employees in a clear and fair manner.
- The employer is to put together a clear policy, which will be updated from time to time, concerning the scope and manner of use of the cameras, and which will – insofar as possible – be determined after consultation with employees and be brought to their knowledge.
- There is a prohibition on use of the cameras and/or the films for purposes which deviate from the purposes which are defined, unless this use is required as a matter of law of by a competent authority. In this respect, it should be noted that the use of information other than for the purpose for which it was provided in any event constitutes a violation of the Protection of Privacy Law carrying criminal, administrative and civil sanctions.
- There is a prohibition against installing hidden cameras or filming the employee without his knowledge, in areas where the employee has a right to a private space, even if the purposes for the installation are legitimate. The Registrar has even emphasized that in light of the wide gap in power between the employer and employee, the employer is not entitled to obtain from the employee 'consent in principle' to carry out hidden filming. The Registrar also mentioned that the installation of hidden cameras without the knowledge of the employee is likely to constitute a criminal offence and especially if these cameras include voice recordings – the latter is likely to constitute wiretapping, which is a serious criminal offence.
- This should be distinguished from the installation of hidden cameras in the workplace for legitimate purposes towards the public at large. With respect to employees, the general rule is that it is not possible to install hidden cameras, whether in public areas of the workplace or in the private areas which are not open to the public at large. The Registrar has mentioned that, within the employment relationship, hidden filming is an unusual exception and should be allowed only in extreme circumstances, while being extremely cautious (and in certain circumstances after the employees have been informed and their views considered). The Registrar proposed that the decision about hidden filming should be taken by senior persons and after receipt of legal advice.
- The decision as the location of the cameras will affect the reasonable expectation of the employee to privacy in various parts of the workplace. Thus, in areas where there is a high expectation of privacy (such as the toilets, showers, etc) – filming could constitute a serious infringement of privacy and it would be hard to find an commercial interest which could justify the same. In the personal office or work station where the regular office work of the employee is carried, as with the areas for rest (kitchen, dining room, etc) – the expectation of privacy is still high but it is possible to justify the installation of cameras there in exceptional cases. In some instances it would be subject to the obligation to inform the employee and obtain his consent. In areas such as corridors, entrances and common areas, it is possible to use cameras for legitimate purposes and in a proportionate and reasonable manner provided the employees are informed.
The Registrar has emphasized that the excessive use of supervisory technologies, which infringe disproportionately the privacy of the employee is likely to expose the employer to criminal, administrative and civil sanctions as set forth in the Protection of Privacy Law and in some cases even would grant the employee the right to compensation even if he resigns.
Reference:
The Guideline as published on the Website of the Database Registrar:
https://www.gov.il/he/Departments/policies/workplace_camera
CA 90/08 Isakov v the State of Israeli – the Supervisor of the Women's Employment Law (published in Nevo 8.2.2011).
The Protection of Privacy Law, 1981.
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