Legal AlertThe Constitutional Court of Turkey Rendered a Decision on the Employer’s Examination of Employee’s Corporate E-mail Account Contents and Termination of the Employment Contract.

23 November 2020

In its decision dated 17.09.2020 (“Decision”), the Constitutional Court of Turkey (“Turkish Constitutional Court”; “TCC”) evaluated the claims within the frame of application numbered 2016/13010, that the corporate e-mail correspondence of the applicant was subjected to inspection by the employer in the attorney partnership where the applicant worked, the applicant’s employment contract was terminated based on the correspondence between the applicant and the team manager which was obtained during the inspection, there was no written or verbal rule in the workplace that employees’ e-mails could be inspected and the inspection subject to application occurred without the consent of the applicant, the termination was not based on a just or good cause, besides, the termination did not take place within six workdays after the reason for termination have been found out by the employer, the court of instance did not present any justification to meet the applicant’s objections and evidence, and thus the right to a fair trial, the freedom of communication and the right to respect to privacy has been violated.

As a result of its evaluation based on the regulations from national and international law, the TCC decided that;

• In the incident of dispute, data processing has occurred as the employer has accessed the e-mail data preserved in the internet environment, inspected and used its content; this data is “the information about a certain natural person”, hence access to, use and processing of this information should be examined in terms of the right to request the protection of personal data within the scope of the right to respect for privacy and the freedom of communication,

• As the correspondence of the applicant submitted to the court of first instance by the employer and the trial process are evaluated as a whole, the contents of the correspondence were accessed by the employer against the consents of the team manager and the applicant; apart from the correspondence between the team manager and the applicant, correspondence with the third parties was also examined; furthermore by not conducting an inspection limited with the allegations, an access has occurred to contents that are unclear whether related or not to the subject at hand, and these contents were also used as the basis for the termination of the employment contract, therefore not only the trafficking information of the e-mails which are among the personal data of the applicant, but also the contents of the same were accessed and used with an unclear scope,

• Within the scope of the positive obligations of the state, the TCC should examine whether the courts of first instance have properly inspected if the person who intervened a right has provided the necessary assurances or not; in this context, it is necessary to examine whether there is legitimate reasoning for the inspection of the communication tools and contents provided by the employer to the employee; the processes of inspecting communication and processing of personal data should be carried out transparently and employees should be informed in detail about the processes in advance; the interventions subject to the application which has been made by the employer should be related to the purpose to be achieved and suitable to realize this purpose; it should not be possible to achieve the same purpose with a lighter intervention in order for the intervention in question to be considered necessary; the data to be processed or utilized by inspecting the communication should be limited to the intended purpose in order for the intervention to be deemed proportionate; also, whether the interests and rights of the applicant and the employer are balanced fairly or not in terms of the effect and consequences on the applicant of the inspection of the communication should be examined,

• Article 20, paragraph 3 of the Constitution secures for everyone the right to request the protection of their personal data, and considering the literal of the Constitutional provision, relative international documents and comparative law, all information about a specific or identifiable natural or legal person should be considered as personal data,
• The freedom of communication secured under Article 22 of the Constitution ensures the confidentiality of the communication content regardless of its substance and form, and it should be ensured that expressions for correspondence regarding verbal, written and visual communications of individuals are kept confidential and unfair interventions are not made towards communication,

• It is understood that as the courts of instance have not fulfilled the positive obligations by making a diligent trial observing the constitutional guarantees foreseen in the entirety of the Decision, the rights and freedoms envisaged in Articles 20 and 22 of the Constitution were violated, and the Decision should be sent to the relevant court for a retrial in order to eliminate these violations and their consequences,

• Pursuant to the reinstatement rule, it is not adequate alone to determine the violation to recompence the consequences caused by the violation of the right to privacy and the freedom of communication, and therefore 8.000,- TL (Turkish Liras) of non-pecuniary damages should be paid to the applicant.

The Decision was published in the Official Gazette dated 14.10.2020 and numbered 31274. You may reach the full Turkish version of the decision via the link below: