Turkey: A Recent Precedent By The Turkish Constitutional Court On Employees' Right Of Privacy And Freedom Of Communication

In a recent decision of the Turkish Constitutional Court (the "TCC"), in a case where the information which was obtained by the employer as a result of the inspection of the employee's WhatsApp messages on the workplace computer allocated for the use of employee has been used as the ground for the termination of the employment contract by the employer, TCC has decided that the termination of the employment contract by the employer, by inspecting private correspondence of the employee by using its power of surveillance authority, violates "Privacy" and "Freedom of Communication" rights of the employee which is guaranteed by the Turkish Constitution.

The applicant employee claimed that although the examination of the correspondence in Whatsapp constitutes an unfair intervention of his private life and freedom of communication, the court did not make such a determination in the reemployment lawsuit he filed, and that the correspondence was obtained by the employer through unlawful methods.

The TCC has ruled that, unless full and clear information is given to the employee in advance regarding the control of the communications made over the company computers allocated for use of the employees, the employee can make personal correspondence with the rightful expectation that their fundamental rights and freedoms will be protected in the workplace, and in the relevant case, the TCC has decided that it is legally beneficial to conduct a retrial in order to eliminate the consequences of the violation of the employee's privacy and freedom of communication rights.

Let's remember the criteria of the TCC in its decisions adopted in 2016, 2020 and early 2021

The TCC ruled in its decisions adopted in 2016, 2020 and early 2021 that employers have a legitimate interest to inspect corporate e-mails without an employee's explicit consent before a particular inspection, provided that the employer had duly informed such employee in advance, therefore the right to demand protection of personal data under the constitutional right of privacy and the freedom of communication of the applicant employee were not violated based on the circumstances of the case.

The points similar and separate in these decisions

Firstly, the similar point in these decisions is the requirement of full and clear information to the employee in advance by the employer regarding the control of the communications made over the company computers allocated for use of the employees. In addition, in any case, the employer must have legitimate interest to inspect.

Even though there is no difference between the decisions in question with respect to the principles they lay down, it may me argued that with this new decision, the private correspondence via private applications downloaded to the corporate computers will also be included within the scope of the employer's requirement of informing its employees regarding possible inspection of their correspondence.

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