Reading Of Whatsapp Correspondence By The Employer: Constitutional Limits And The Current Judicial Approach

A. INTRODUCTION

The widespread use of digital communication tools in employment relationships has reignited discussions regarding the boundaries between the employer's right of supervision and the employee's fundamental rights and freedoms. In particular, the monitoring by employers of personal communication applications such as WhatsApp used through workplace computers requires a delicate balance both in terms of labour law and constitutional rights.

In recent years, Turkish courts have begun to define this balance more clearly through their decisions. In this context, when both the Constitutional Court's decision no. 2018/34548 and the 2023 decision of the 47th Civil Chamber of the Istanbul Regional Court of Appeal are evaluated together, the limits of the employer's digital monitoring authority are clearly established.

B. THE APPROACH OF THE CONSTITUTIONAL COURT: FUNDAMENTAL RIGHTS TAKE PRECEDENCE

 In its decision dated 28 December 2021, the Constitutional Court ruled that the employee's right to respect for private life and freedom of communication had been violated due to the employer's examination of the employee's WhatsApp correspondence and the use of such correspondence as grounds for the termination of the employment contract.

In the case at hand, the employee's WhatsApp correspondence conducted through the workplace computer was examined by the employer, and such correspondence was used as justification for the termination of the employment contract. However, the employee had not been clearly and transparently informed in advance that such communications could be monitored. In its decision, the Constitutional Court emphasised that employees must be clearly informed beforehand regarding the monitoring of communication tools used in the workplace. The Court further stated that the employee's expectation of privacy should be protected in relation to correspondence conducted through an application such as WhatsApp, which is clearly intended for personal use, and that employer intervention may only be considered lawful where it satisfies the criteria of legitimate aim, necessity, and proportionality. The decision particularly noted that it is foreseeable for employers that employees may engage in personal communications through workplace computers and that, therefore, employees' expectations regarding the protection of their private lives and communications should be regarded as reasonable.

C. THE REGIONAL COURT OF APPEAL DECISION: UNLAWFUL EVIDENCE AND INVALID TERMINATION

The 47th Civil Chamber of the Istanbul Regional Court of Appeal adopted a similar approach. In its decision dated 9 February 2023, the Court determined that the employer had accessed the employee's computer by using the employee's password and read the employee's WhatsApp correspondence, while the employee had not been informed beforehand regarding such access and the legal basis for the processing of the obtained data could not be established. For these reasons, the Court concluded that the correspondence in question had been obtained unlawfully and held that such correspondence could not be used as valid evidence for the termination of the employment contract, ultimately finding the termination invalid.

D. COMMON PRINCIPLES: THE FRAMEWORK ESTABLISHED BY TURKISH JUDICIARY

When both decisions are evaluated together, it becomes apparent that Turkish courts have developed a more protective and fundamental rights-oriented approach regarding the employer's authority to monitor employee communications. Accordingly, the employer's right of supervision is not regarded as an unlimited authority, and it is accepted that practices interfering with employees' private lives and freedom of communication must be subject to certain safeguards. In particular, emphasis is placed on the necessity of informing employees beforehand, in a clear and transparent manner, about which communication tools may be monitored and to what extent. Monitoring activities carried out without such prior notification are, as a rule, considered unlawful.

Furthermore, judicial decisions clearly demonstrate that employees have a reasonable expectation of privacy in applications such as WhatsApp, which are inherently intended for personal communication. The mere fact that the relevant correspondence is conducted through a workplace computer does not automatically render such communications entirely open to employer monitoring. Employer intervention must be based on a legitimate aim, comply with the principle of proportionality, and remain within the limits necessary for achieving the intended purpose. In cases where the objective could be achieved through less intrusive means, the direct examination of private message contents is regarded by the courts as a serious interference.

Finally, both the Constitutional Court and lower courts have explicitly established that message contents obtained through unlawful methods cannot be used as valid evidence for the termination of an employment contract. This approach demonstrates that employers, when conducting digital monitoring activities, must take into account not only their managerial authority but also employees' constitutional rights and obligations relating to the protection of personal data.

E. CONCLUSION

When the decisions of the Constitutional Court and the Regional Court of Appeal are evaluated together, it becomes clear that the employer's authority to monitor employees' WhatsApp correspondence is not unlimited. In order for digital monitoring activities carried out by employers to be considered lawful, employees must be clearly informed beforehand, the intervention must pursue a legitimate aim, and the principle of proportionality must be observed.

Judicial decisions further demonstrate that employees have a reasonable expectation of privacy in personal communication tools such as WhatsApp and that message contents obtained unlawfully cannot be used as valid evidence for the termination of an employment contract. Therefore, employers must conduct digital monitoring processes not only within the scope of managerial authority but also by taking into account employees' constitutional rights and obligations relating to the protection of personal data.

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