The increasingly widespread use of camera surveillance raises several important legal questions, including:  

• Under what circumstances is the installation and use of these cameras considered legitimate?   

• To what extent is there a risk to privacy? 

• When, how, and to what extent must employers inform employees about the use of cameras and obtain their consent? 

These questions were addressed by the National Labour Court in a recent landmark ruling, Mark Friedman Ltd. v. Elkner. The court’s determinations will necessitate that employers re-evaluate whether and how they use workplace cameras. 

Over the years, employees’ right to privacy in the workplace has found expression in various court rulings and administrative directives. For example, the National Labor Court issued a ruling in 2011 dealing with an employer’s ability to monitor the contents of an e-mail inbox used by its employees. This ruling established the employer’s obligation to create a clear policy, to obtain express, informed, and voluntary consent from the affected employees, and to adhere to guiding principles and rules. These principles include the legitimacy of the purpose of surveillance, proportionality of the means of surveillance, and relevance to the purpose concerning the collection and limitation of information use. 

With regard specifically to the placement of cameras in the workplace, the Privacy Protection Authority published a directive in 2017 that builds on a previous general directive concerning the use of security and surveillance cameras. The Authority’s directive was primarily based on the above-mentioned 2011 Court ruling.  

The Friedman Ltd. v. Elkner case involved an employee who resigned after many years at the workplace, citing a tangible deterioration in her working conditions following the installation of two surveillance cameras near her work area. 

The Court ruled that the mere placement of cameras in the workplace does not constitute a tangible deterioration in employment terms that would allow an employee to resign and claim constructive dismissal. 

After reviewing practices in various countries, the Court established that the guiding principles for examining potential privacy violations related to workplace cameras involve a multi-stage examination. 

The first stage involves examining the legitimacy of the privacy violation and the existence of a proper purpose. At this stage, the court will determine whether the purpose of placing the cameras is essential and intended to promote a legitimate objective in the workplace. Examples of cases where placing cameras might be considered legitimate include preventing theft, deterring break-ins, and documenting and deterring incidents of violence and sexual harassment. 

The second stage involves examining the degree of privacy infringement resulting from the placement of the cameras. At this stage (and only if the privacy infringement is deemed legitimate under the first stage), it must be assessed whether the chosen alternative for camera placement results in minimal privacy infringement for employees and is relevant to achieving the intended purpose. 

The Court specified several sub-tests in this context, including:  

• whether the camera is placed in a public or private area;  

• whether it records only the employee(s) or other parts of the office;  

• whether it includes audio recording;  

• whether the footage is accessible to the employer or a security company; and  

• if the footage is accessible to the employer, which officials have access to it. 

The third stage involves balancing the privacy violation and the degree of the employee’s consent. As part of this stage, the court will examine whether the employees were given the opportunity to express their position on the matter. Among other things, it will determine whether the employer informed the employees about the potential privacy violation due to the camera placement and whether consent was obtained. The duty to inform extends to both existing employees and potential new hires. (Bear in mind that in unionised workplaces, it will be necessary to check whether this has been discussed with the workers’ representatives.) 

Additionally, the court will assess whether the obtained consent is sufficient. The Court ruled that the more severe the privacy violation, the more important it is that the employer obtain the employee’s explicit consent to use the camera. The lower the harm, the less stringent the consent required, and the more severe the harm, the clearer the knowledge and consent required (through an appendix to the employment agreement or a separate document). 

For less severe violations, it may be sufficient to simply inform the employee(s). In cases of extremely severe privacy violations, such as placing cameras in changing rooms and restrooms, obtaining valid consent from employees is not permissible. 

The Court further noted the importance of considering whether the privacy violation affects a new or existing employee and whether there has been a change in this context throughout the employees’ employment. 

The ruling also addressed the issue of an employee’s entitlement to severance pay due to resignation stemming from a tangible deterioration in working conditions, specifically related to a privacy violation. However, privacy violations resulting from the installation and use of cameras may have additional consequences beyond the employee’s entitlement to severance pay due to a tangible deterioration in working conditions. It is important to note that, as of today, compensation due to violations of the Privacy Protection Law is not within the Labor Court’s jurisdiction. 

In light of the National Labor Court’s ruling, it is essential for employers to have a clear policy regarding the placement and use of cameras, and to ensure that this policy meets the conditions set forth in the new ruling. It is also crucial for employers to assess whether their workplace’s efforts to meet their obligation to inform and obtain consent from employees about the location and use of cameras meets the standards set forth in the new ruling, especially considering the extent to which the cameras infringe on the employees’ privacy.