Recent Development
The Constitutional Court issued its decision no. 2016/13010 regarding the interventions on an employee’s (“Applicant“) right to request the protection of personal data under their right to privacy and the freedom of communication. The decision was published in the Official Gazette on October 14, 2020. The Court assessed that courts did not evaluate the employer’s procedures for the inspection of correspondences on the Applicant’s corporate email address as part of an internal investigation to evaluate complaints about the Applicant and to better understand the relationship between employees, and this violated the Applicant’s right to request the protection of personal data and the freedom of communication. The decision is available online here (in Turkish).
Background
In relation to the arguments between the Applicant, their team head and other team members, the employer received complaints from certain team members. In the complaints, it is stated that the Applicant’s negative attitude and behavior towards other team members materially affected the working environment necessary for the team to operate in a healthy manner. Further to these complaints, the employer initiated an internal disciplinary investigation to evaluate the subject matter of the complaints and to better understand the relationship between employees. During the investigation, the employer also reviewed and inspected the Applicant’s correspondences on their corporate e-mail address. At the end of the investigation, the employer terminated the Applicant’s employment contract for cause, on the grounds that the trust relationship in the working environment materially collapsed due to the Applicant’s negative attitude and behavior towards their team members. In response, the Applicant filed a lawsuit before the court of first instance and requested to be reinstated at their job; however, the court of first instance rejected the claims and the decision on dismissal of claims was finalized upon the Supreme Court’s approval at the appeal stage. After the decision was finalized, the Applicant filed an individual application before the Constitutional Court, stating that courts did not evaluate that the employer reviewed and inspected the email correspondences that served as evidence for the court of first instance’s decision without the Applicant’s consent. Accordingly, the Applicant argued that the employer’s review and inspection of email correspondence violated the Applicant’s freedom of communication and the right to request the protection of personal data under their right to privacy guaranteed by the Turkish Constitution.
What Does the Decision Say?
The Constitutional Court stated that courts must observe the following when evaluating disputes where employers review and inspect communication devices used by employees as part of the State’s positive obligations:
- Whether there are legitimate reasons justifying the inspection of the communication devices that employers provided to employees and the content of the communications made through these devices;
- Whether the processing of personal data is carried out in a transparent manner and the employer informs the employees in advance of these processing activities;
- 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 intervention is proportionate and related and limited to the purpose; and
- Whether the balance between the consequences and impact of the inspection of the employee’s communication and the conflicting interests and rights of the employer is observed.
In light of the foregoing principles, the Court underlined that, in cases where employees are not informed that the employer may inspect their communication, employees should have a reasonable expectation that their fundamental rights and freedoms will not be intervened with. On the other hand, the Court also stated that the use of corporate e-mails created for facilitating work processes and provided to employees in a manner accessible by the employer constitutes the employer’s legitimate interest regarding the work management, and is an efficient method for achieving the intended purpose.
The Court assessed that the Applicant’s right to request the protection of personal data and the freedom of communication were violated, noting that the court of first instance did not sufficiently observe the following when rendering its decision: (i) employees are not explicitly informed that the employee may inspect their communication; (ii) the lack of a clear explanation that access to the content of the employee’s communications was mandatory; (iii) whether it was possible to achieve the same purpose by other means, such as reviewing the complaints made by the other employees, listening to witnesses and inspecting project processes; (iv) whether it was necessary for the employer to access content meriting termination, other than the content that served as the initial basis for the e-mail inspection. A copy of the Court’s decision was sent to the relevant labor court for re-trial.
Conclusion
The Court’s decision constitutes an important precedent in relation to the implementation of personal data protection legislation. In the case, the court of first instance evaluated the evidences in the case file, and ruled that an employee’s misbehavior towards another employee constitutes just cause for termination and that the employer’s termination of the Applicant’s employment is appropriate. Accordingly, the Supreme Court approved the court of first instance’s decision on dismissal of the Applicant’s claims; however, the Constitutional Court ruled that the Applicant’s right to request the protection of personal data and the freedom of communication were violated on the abovementioned grounds.
According to the personal data protection legislation, as a general rule, in assessing the interventions on the right to request the protection of personal data and the freedom of communication by means of inspecting communications, employers must inform individuals of this processing in advance, observe the balance between the consequences of inspection and individuals’ fundamental rights and freedoms, ensure that the intervention is proportionate, limited and related to the intervention’s purpose, and evaluate whether there are other means of achieving the same purpose. While we are of the opinion that the events mentioned in the Court’s decision should be evaluated based on then-current legislation since these events took place before the personal data protection legislation entered into force; the Constitutional Court’s decision should constitute an important precedent for the future implementation of law.
