The Constitutional Court of Turkey’s ruling of September 17, 2020 on the application numbered 2016/13010 regarding surveillance of the employer (“Ruling”) has been recently published in the Official Gazette. According to the Ruling, the Constitutional Court held that the right to the protection of personal data and the privacy of communication, which are safeguarded by Articles 20 and 22 of the Constitution have been violated due to the unlawful access by the employer to the correspondence via corporate e-mail accounts of employees.
According to the Judgment, the applicant was employed by the employer under the Labor Law numbered 4857. During such period, the applicant was provided with a corporate e-mail account which was based and storing data on a server owned by its employer. Due to several complaints against the applicant, the employer accessed the correspondence made via the applicant’s corporate e-mail account under its investigation procedures.
Upon the monitoring activities, the applicant’s employment contract was terminated due to his “acts and behaviors in breach of moral and good faith principles” based on the correspondence made via the applicant’s corporate e-mail account.
The applicant then filed an action before the relevant court of first instance for reinstatement. Yet, the court dismissed the actions. Thereupon, the applicant appealed the first instance decisions before the Court of Cassation which also dismissed the appellate request.
Issues to Consider
In its assessment, the Constitutional Court recalled the factors specified by the European Court of Human Rights in its well-known judgment on the Case of Bărbulescu V. Romania. Within the scope of the State’s positive obligations, the Constitutional Court concluded that following criteria have to be fulfilled in order to achieve the lawfulness of the monitoring activities:
· The employer has to provide legitimate reasons to justify monitoring the communications and accessing their actual content.
· In order to comply with the transparency and democratic society standards, the employer has to inform the employee regarding the monitoring in advance. Accordingly, such information should include, at minimum, the legal basis and purposes of data processing activities related to the monitoring, scope of the monitoring and data processing activities in this regard, the retention period of the data collected upon the monitoring, rights of the data subject, the consequences of the monitoring and processing, the potential users of the data collected upon the monitoring. In addition, limitations foreseen by the employer for the use of means of communication should also be directed to the employee.
· The employer’s interferences with the employee’s right to protection of personal data and freedom of communication have to be relevant to the targeted aims and be effective to achieve such aims. The data collected upon the monitoring have to be solely used for targeted aims.
· The employer’s interferences with the employee’s right to protection of personal data and freedom of communication have to be necessary for legitimate aims. In this respect it should be assessed whether it would have been possible to establish a monitoring system based on less intrusive methods and measures than directly accessing the content of the employee’s communications.
· The employer’s interferences with the employee’s right to protection of personal data and freedom of communication have to proportionate. In this sense, the data collected upon the monitoring or the data to be used in this process have to be limited to legitimate aims and any interference beyond such aims should not be allowed.
· The fair balance has to be struck between the interests at stake considering the consequences and effects of the monitoring for the employee subjected to it.
In light of the factors, the Constitutional Court addressed that earlier judgements regarding the applicant’s claims had not been included the facts that whether the employer has informed the applicant on such monitoring activities, or the applicant have provided his consent to the access of the employer to its emails. Accordingly, the Constitutional Court stated that the employer had not informed the applicant regarding its monitoring activities nor requested his consent in this regard.
Moreover, the Constitutional Court stressed that the employer had failed to provide the legitimate reasons on necessity to monitor the content of applicant’s communications via his corporate e-mail account for the investigation pursued following the complaints against the applicant. In this sense, the Constitutional Court underlined the availability of other evidences for conducting the investigation such as analyzing the complaints and defenses, hearing witnesses, other workplace records or examining the project results in order to conclude complaints in regard to the applicant’s effect to the group efficiency. Furthermore, the Constitutional Court underlined that the employer’s monitoring activities on the applicant’s e-mails were also not limited to the scope of its investigation.
Due to mentioned reasons, the Constitutional Court ruled that the applicant’s right to the protection of personal data and freedom of communication have been violated by the employer’s monitoring activities.
Employers in Turkey should take into consideration the provided criteria in order to assess their monitoring and surveillance activities. Any kind of monitoring and surveillance activities which is excessive, intrusive, unnecessary, disproportionate or not transparent may be subject to relevant sanctions in terms of the individual’s right to the protection of personal data and freedom of communication.
Aslı Naz Ünlü