Recent Development
The Constitutional Court decision no. 2018/31036 regarding the rights of personal data protection and the freedom of communication regulated under the constitutional right of privacy related to a bank employee (“Applicant“) was published in the Official Gazette dated February 5, 2021. The court considered that the examination of the Applicant’s corporate e-mail address correspondence and the basis for the termination of the employment contract based on the allegation that the Applicant was working another job did not violate the Applicant’s right to request the protection of their personal data under their right to privacy and the freedom of communication. The decision is available online here (in Turkish).
Violation Claim Subject to the Application
The employer, a bank, initiated an internal audit process based on the claim that the Applicant was working for his wife’s business while employed by the bank as a customer relations manager. The inspector appointed by the bank examined the Applicant’s corporate e-mail account, and determined that the Applicant exchanged several correspondences regarding his wife’s business, including negotiating loans with other banks, sending documents regarding stocks, and sending several documents to the accountant of the wife’s company. Subsequently, the Applicant’s employment contract was terminated because he was engaged in commercial activities on an external subject during working hours and therefore violated his essential duty under the employment contract.
The Applicant filed a reinstatement lawsuit before the court of first instance, but the court of first instance dismissed the case. The Regional Court of Justice approved and finalized the court of first instance’s dismissal of the case. Subsequently, the Applicant filed an individual application before the Constitutional Court and claimed that the examination of the corporate e-mail account correspondence, which was the basis of the court decision, was carried out without informing the Applicant and without his consent. The Applicant claimed that this was not supervised by the judicial bodies and in this respect, the right to freedom of communication and respect to privacy guaranteed by the Constitution had been violated.
Evaluation of the Constitutional Court
The Constitutional Court reiterated that the courts should observe the following issues within the scope of the positive obligations of the state under the supervision of communication devices by the employer, in line with its previous precedents:
- Whether there are legitimate grounds indicating that the examination of the communication tools and content of the communication provided by the employer is justified, and higher standards for justification should be sought if the case involves examination of the content, distinguishing between the flow of communication and the examination of the communication content in its evaluation,
- Whether the processing of personal data is carried out in a transparent manner and the employer informed the employees in advance of these processing activities;
- Whether the legal basis and purposes of data processing, its scope, storage period, etc., and the limitations imposed by the employer on the use of communication devices are included in the information provided,
- Whether the intervention on the employee’s right to request the protection of personal data and the freedom of communication is related to and efficient for the purpose of investigation;
- Whether there is a less intrusive method to achieve this purpose;
- Whether the impact of the examination of communication on the employee and the consequences for the employee is a balance in terms of conflicting interests and rights.
In light of the foregoing principles, the Constitutional Court underlined that communication via e-mail account can be controlled and the employee must be informed in full and in a clear manner in advance on the conditions of use of communication devices.
The Constitutional Court first evaluated whether the examination of the corporate e-mail account is within the legitimate interest of the employer. In the decision, it was stated that the employer has a large number of employees and provides corporate financial services. Considering this, the purpose of the processing of personal data in the corporate e-mails of the employees and keeping the communication flow under control is ensuring that the works are carried out effectively. In addition, it has been stated that the use of the corporate e-mail account to access the communication flow and the content of it is an adequate method within the scope of legitimate interest in terms of the management of the workplace and the purpose.
The Constitutional Court has stated that if the employee is informed explicitly, the employer cannot be expected to obtain the employee’s consent before examining the corporate e-mails. In other words, it was stated in the decision that after the employee is informed, the employee’s consent should be deemed obtained until proven otherwise or unless an objection related to the subject authority of the employer is indicated on the document informing the employee. In this context, the Constitutional Court stated that in the Applicant’s employment contract, corporate e-mail would only be used for business purposes and could be audited by the bank management without notice, and that the personnel would not have any right for objection to this matter, and it is emphasized in the decision that the employee consented to this supervisory authority by signing this contract.
Based on this, the Constitutional Court evaluated that the examination of the e-mail contents sent via the corporate e-mail account within the scope of the employer’s legitimate interest in the case at hand and decided that the notification included in the employment contract was sufficient and that the employee consented to the examination authority for the e-mail communication by signing the employment contract. In this respect, it has decided that the right to request the protection of personal data within the scope of the right to privacy set forth in Article 20 of the Constitution and the freedom of communication, which is set forth in Article 22 of the Constitution are not violated.
Conclusion
Constitutional Court created an important precedent with this decision for the data privacy practice and especially its relationship with the labor law.
- The investigation of the corporate e-mails in the subject case was evaluated within the scope of the legitimate interest of the employer;
- It is determined that explicit consent is not required under the data privacy legislation since the actions of the employer falls within the scope of its legitimate interest;
- It is determined that the employee contract contains the necessary information allowing the investigation of the e-mail messages and the signature of the employee should be considered as the consent to the investigation of the corporate e-mails.
In light of the considerations above, we consider that the Constitution Court has created an important precedent with this decision with respect to the data privacy, labor law and internal investigation practices, shedding light to the practitioners.
