In its decision dated 17.09.2020 regarding case number 2016/13010, which was published in the Official Gazette dated 14.10.2020, the Turkish Constitutional Court evaluated whether the review of employee emails and their use as grounds for rightful termination violated the rights of privacy and freedom of communication of the applicant.You can reach the decision here. (Available in Turkish only). In its decision, the Constitutional Court ruled in favor of the applicant on the grounds that their right to request the protection of their personal data and their right to freedom of communication had been violated. The decision also expanded upon the prerequisites and conditions that employers must adhere to when reviewing an employee's official employer-provided email correspondence.

The applicant's contract of employment had been terminated due to personal email correspondence that was carried out through a corporate email account provided by their employer. The correspondence was then presented as evidence by the employer in the ensuing unfair dismissal claim. The court took the evidence into account and rejected the applicant's claim of unfair dismissal. The applicant subsequently filed an individual appeal to the Constitutional Court claiming that they had not been informed by the employer that such correspondence could be reviewed and that as they had assumed it would not be, its use as evidence infringed upon the rights of privacy and the freedom of communication.

While the Constitutional Court did concede that employers had a legitimate interest in reviewing corporate email accounts, the court stated that unless a clear and full notice was provided to  employees in advance, unrestricted review of these email accounts would be disproportionate. This view was based primarily on the assertion that, in the absence of a prior warning or notification, employees would be working under the reasonable expectation that their rights and freedoms in relation to personal communication would remain intact. As no such prior notice or warning was provided in the case referred to the Constitutional Court, the court reasoned that broad access to and review of email correspondence associated with the employee's corporate email account would violate the applicant's constitutional rights of privacy and freedom of communication.

The Constitutional Court also made reference to the ECHR's previous ruling in the Barbulescu/Romania case that similarly established an absolute obligation of prior notice to employees. While the employer does have a claim of legitimate interest in relation to the review of correspondence linked to corporate email accounts, the court emphasized the necessity to balance this interest against the fundamental rights of employees. As the right to privacy and private life continue in the sphere of the workplace, employers must maintain a balance to establish the required level of protection for these constitutional rights.

The primary prerequisite that has been established by the Constitutional Court is that employees must be clearly and fully notified in advance that correspondence linked to their corporate email accounts, including any personal correspondence, can be reviewed by the employer. If such prior notice is provided, the employer will be able to review the email correspondence linked to the corporate email account within the boundaries that have been previously notified to the employee. However, it should be highlighted that even in a situation where prior notice is provided, the employer will not be granted broad and unrestricted access to review and utilize such correspondence. It is important to establish necessity and balance in relation to other methods of review and investigation available to an employer. As the ECHR also ruled in the Barbulecu decision, if an employer is in the position to identify an employee's actions without having to review the content of their correspondence, proceeding to review and utilize the correspondence regardless will be seen as disproportionate and thus will constitute a violation of the rights of the employee.

In addition to the duty of an employer to compensate an employee in the situation that such correspondence is reviewed, an employer may also be held liable in terms of crimes against private life and privacy as established under the Turkish Criminal Code.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.