Constitutional Court Decision dated 17.09.2020 with Application Number 2016-13010

The Constitutional Court’s decision dated 17.09.2020 and numbered 2016/13010 Application No. (“Decision“) regarding the employer’s monitoring of the employee’s e-mails was published in the Official Gazette on 14.10.2020.

The decision concerns the examination of the content of the corporate e-mail account of the applicant, who worked for a law partnership, by the employer during a disciplinary investigation conducted due to problems at the workplace and the termination of his employment contract on the grounds of these correspondences.

In the Decision, the Constitutional Court evaluated (i) how the restrictive and coercive regulations were determined in the employment contracts according to the circumstances of the concrete case, (ii) whether the parties were informed about these regulations, (iii) whether the action that caused the interference with the fundamental rights of the employees was within the scope of the legitimate interest of the data controller, and (iv) whether the termination of the contract was a reasonable and proportionate action against the actions or inactions of the employees.

In this context, as a result of the evaluations made within the framework of national and international law, such as the Law on the Protection of Personal Data, the European Union Data Protection Regulation and the European Convention on Human Rights, the Constitutional Court decided on the violation by mentioning the following issues

-That the content of the applicant’s e-mails is personal data within the scope of the Law on the Protection of Personal Data,

-The right to request the protection of personal data under Article 20 and the freedom of communication under Article 22 of the Constitution have been violated,

-The employer may inspect the communication tools allocated by the employer, but this authority is not an unlimited and absolute authority and it may be possible to examine it after an evaluation within the scope of the fundamental rights and freedoms of the employee,

-The examination of the employee’s e-mails may be considered within the scope of the legitimate interests of the employer, but the employee should be clearly and clearly informed about this issue,

-During the examination of e-mails for the purpose of termination of the employment contract, other independent content was also accessed and this was contrary to the principle of proportionality,

-The lack of an assessment as to whether it is mandatory to examine the e-mails for the termination of the employment contract is contrary to the principle of necessity.

In light of the above, the Constitutional Court awarded non-pecuniary damages and decided to send the file to the local court for a retrial.

In addition to the Decision, there are many decisions of the 9th and 22nd Civil Chambers of the Court of Cassation stating that the computers allocated by the employer are the property of the employer and the use of these computers for personal purposes is a just cause for termination.

In parallel with the decision of the Constitutional Court, the 22nd Civil Chamber of the Court of Cassation, in its recent decision dated 07.05.2019 and numbered 2017/21857 E., 2019/9884 K., decided that it is always possible for the employer to monitor and follow the employee electronically as a result of the management right, but for this, the employee must be informed about this monitoring.

In the light of the Constitutional Court’s Decision and the case law of the Court of Cassation, it is seen that the employer has the authority to inspect the computers of its employees and has the right to terminate the employment contract in case of any violation of the law. However, this authority and right of the employer is not unlimited. The employer must exercise this right by observing the fundamental rights and freedoms of the employee and by informing the employee clearly and clearly within the scope of the legitimate interests of the employer. Otherwise, the legal and criminal liability of the employer may arise.

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