Decision of the Presidency of the Constitutional Court, Application No. 2016/13010 and dated 17/09/2020, published in the Official Gazette dated 14.10.2020 and numbered 312741
Subject of Application:
The application is about the right to request the protection of personal data within the scope of the right to respect for private life and the allegations of violation of freedom of communication as a result of the examination of the content of the corporate email account of the applicant working in a private company and the termination of the employment contract on the basis of these correspondences.
The Process of Reemployment Lawsuit:
The applicant filed a declaratory lawsuit include request for reemployment lawsuit against the employer at the Istanbul 8th Labor Court. In the petition, the applicant briefly stated that he was employed by the defendants E. Attorney Partnership, B.M. Consulting Services and B.M. Office Management and Services Limited Company, and that he was working with the aforementioned companies with an unwritten indefinite-term employment contract. He claimed that he did not initiate the discussion that was shown as the reason for termination, that there was no mutual insult during the discussion, and that the discussion ended with the intervention of the team manager. In addition, he stated that the email correspondence shown as the reason for termination were the personal meetings he had with the team manager, which were said due to the tension of the business at that time, and not reflected to anyone, and that no questions were asked about these emails in the defense request invitation and in the oral defense meeting. Furthermore, he stated that if a retrospective examination were made, it could be determined that similar emails were also exist among other employees, and claimed that the termination of the employment contract was malicious and not based on a justified reason.
In the employer's response, it was stated that the corporate email account used by the team manager, lawyer A.A.Y., was examined, since the basis of the troubles experienced in the working team was not the events, but the discourses and instant movements that are almost impossible to prove and that after an argument took place between the applicant and another lawyer working in the same team, his teammates filed complaints against the applicant and team manager A.A.Y. In the aforementioned reply, it was emphasized that the investigation was limited to the correspondence between A.A.Y. and other team members, threats and psychological harassment of the applicant to the team manager, and insulting messages to other teammates were determined, and the contents of the relevant messages were presented with a petition. In addition, it was expressed that as a result of the examination of the applicant's email, it was determined that these messages were deleted, that although there was an oral defense interview with the applicant, the emails were examined because there was no concrete data on whether the allegations about the applicant were true, and that since it is a corporate email, the applicant's email can always be reviewed by the employer.
The Court of First Instance dismissed the case on 20/8/2015.
In the reasoning of the decision it was stated that co-employment conditions are fulfilled, on the other hand, the events and reasons that constituted the basis for the termination of the employment contract were clearly indicated in the termination notice, that the applicant had arguments which came to a fight with other employees in the team and it was understood that these arguments and fights resulted from the attitudes and behaviors of the applicant. At the same time, it was emphasized that the applicant made insulting words against other employees of the employer by using the email address given by the employer to carry out his work and that he knew could be reached by the employer. Subsequently, it was concluded that the employee's harassment of another employee would constitute a just cause for termination for the employer and the termination made by the employer was appropriate.
The aforementioned decision was appealed by the applicant's attorney with a request to reverse it. In the petition of appeal, it was stated that the emails consisting of correspondence from personal accounts were shown as the reason for termination, and that the privacy of private life and freedom of communication were violated, however, the said messages were considered as evidence by the court of first instance. It has also been stated that the corporate email is encrypted, the employees in the workplace were not notified that their email correspondence can be read, and the consent of the employees was not obtained in this regard, and the defendant employer did not have any claim to the contrary during the lawsuit, and only claimed that it should be known that emails can be read. It was emphasized that the email correspondence in question consisted of private correspondence between two people and was not reflected to the third person until it was read by the employer.
The employer presenting a response to the grounds of appeal, stated that the correspondence is carried out through the email accounts created by the company on behalf of the employees, that these email addresses do not have any passwords, and that all messages made from these contact addresses are stored on the employer's server. In the reply petition, by including the Supreme Court Practices, it was also emphasized that the employer can always control the computer and corporate email addresses allocated to the employee and the claim that the termination was based on justified reasons was repeated.
With the decision of the 9th Civil Chamber of the Supreme Court of Appeals, dated 12/5/2016, the decision of the first instance court was upheld by removing the part regarding the applicant was employed by both defendants together from the reasoning.
Allegations of the Applicant in his Application to the Constitutional Court:
The applicant stated that the personal correspondence he carried out through his corporate email accounts was examined by the employer without his consent, that there was no written or verbal rule in the workplace that the emails of the employees could be examined and audited, and that the employer made such an examination in order to find a reason for the termination of the employment contract. The team leader stated that thousands of correspondences on A.A.Y.'s corporate email account were reviewed by the employer, and the contents of the emails, which he wrote without thinking that the employer would read them, and which the employer did not know until the moment of review, were made a reason for termination and the correspondence in question was accepted as evidence in the declaratory action with a request for reemployment. In addition, he stated that the termination was not based on a just or valid reason, that the termination was not made within six working days after learning of the reason for the termination, that the court of first instance did not present a justification to meet its objections and evidence, and argued that the right to a fair trial and the right to freedom of communication and respect for private life were violated. The applicant requested that his identity information be kept confidential in public documents, citing the characteristics of his profession.
Evaluation of the Application by the Constitutional Court:
In the concrete case, it is in question that the employer controls the messaging of the applicant using his corporate email account and makes the information obtained as a result of the retrospective examination of the content as a basis for the termination of the employment contract. In addition, it can be said that data processing is in question, considering that email information is kept confidential on the internet, this data is accessed and its content is used by controlling it. However, when it is considered that the applicant's email information and correspondence are within the scope of information about a certain natural person, it has been evaluated that the access, use and processing of this information should be examined in terms of the right to request the protection of personal data and freedom of communication, within the scope of the right to respect for private life.
First of all, as in the concrete case, in disputes arising due to the fact that employers, who want to benefit from the opportunities of technological developments, offering communication tools and equipment such as computers, internet and email to the employee, it becomes necessary to make a balance between the interests of the employer and the fundamental rights and freedoms of the employee. In this context, it should not be forgotten that the relationship between the employer and the employee is shaped by the employment contract, which sets forth certain rights and obligations for both parties and is essentially based on a trust relationship. It should also be taken into account that the labor law to which the concrete dispute is related has a dynamic nature, and that employment relations contain some distinctive legal rules that are different from the general rules.
It can be said that the employer can, in principle, control the communication tools offered to the use of the employee within the scope of its management authority and may impose restrictions on use for reasons that can be seen as justified and legitimate, such as ensuring the effective execution of the work and controlling the flow of information, protecting against criminal and legal liability due to the actions of the employee, measuring productivity or security concerns. However, it should not be forgotten that the management authority of the employer is limited to the execution of the work in the workplace and to ensure the order and safety of the workplace. In this context, it should be emphasized that the employer's authority and rights are not unlimited, the fundamental rights and freedoms granted to the employee, the freedom of communication in the concrete case and the right to demand the protection of personal data are also protected within the boundaries of the workplace, and at the same time, restrictive and mandatory workplace rules should not harm the essence of the fundamental rights of the employees. Accepting that the employer has unlimited and absolute surveillance and control authority over the means of communication only because the communication tools made available at the workplace belong to the employer, will not be compatible with the legitimate expectation of the employee that his fundamental rights and freedoms should be respected at the workplace in a democratic society.
The applicant claimed that although the examination of his email correspondence constituted an unjustified interference with his private life and freedom of communication, no such determination was made in the reemployment lawsuit he filed, that his correspondence was made public by the employer, and that the said interventions were made legitimate due to the decisions rendered by the courts.
In the case that is the subject of the application, the applicant works as a lawyer within the body of an attorney partnership that employs a large number of employees. The employer stated that within the scope of the disciplinary investigation carried out regarding the problems in the workplace, the corporate email accounts created to facilitate the execution of the works and made available to the employee were examined in order to obtain concrete evidence. It has been observed that there is no conflict between the applicant and the employer regarding the existence of a corporate email account created on behalf of the applicant and that this email account made available to the applicant is examined by the employer. It is understood that the employer, who has a large number of employees and provides corporate legal services, processes personal data and controls the communication flow by creating a corporate email account for its employees, for the purpose of ensuring that the business is carried out effectively. In this case, it can be said that making the corporate email account available to access the communication flow and content constitutes a legitimate interest in terms of the management of the workplace in the concrete case, and is also a convenient method to achieve the intended purpose.
At the trial stage in the case subject to the application, the employer has declared that, upon it was determined in the examination carried out during the disciplinary investigation that messages in the applicant's email account had been deleted, messages underlying the termination of the applicant's employment contract have been obtained by examining team leader A.A.Y.'s email. The applicant claimed that the messages identified by the employer were personal correspondences selected from thousands of mails examined and written with the expectation that they would not be read by the employer. It is understood that the email messages presented to the court by the employer consist of dialogues between the applicant and the team manager, in which the opinions about each other and the workplace in general are explained, in the form of discussion from time to time.
It should be emphasized that it is a situation that can be foreseen by the employer that the employee can make personal correspondence via corporate email with the rightful expectation that his fundamental rights and freedoms will also be protected at the workplace in cases there is no full and clear notification which indicate communication made via the email account can be audited and regarding the terms of use of the communication tools. From this point of view, it can be said that it is necessary to accept that employees have a reasonable expectation that their rights and freedoms are not be interfered with in the absence of clear information, and that they should benefit from the guarantees provided by fundamental rights and freedoms.
In the concrete case, considering the fact that the applicant is working under an unwritten employment contract and that the employer did not present information and document indicating that a notification showing the authority and scope of examining the corporate email has been made to the applicant during the trial, it is understood that there is no clear notification that the communication made via the corporate email account can be monitored and audited by the employer. On the other hand, the applicant's employment contract was terminated on the grounds of the email contents. However, during the trial process, the employer, as the defendant, failed to demonstrate that the notification was made regarding the legal basis of the processing of personal data and the purposes of the processing, the scope of the data to be processed, the period of storage of the data, the rights of the data owner, the results of the processing and potential beneficiaries of the data. In this context, during the trial process, it was not discussed by the courts of instance whether such notification was given for the email communication, which constitutes the main reason for the termination and it was understood that the applicant's fundamental claims that the email contents were accessed without his consent and without prior notification, though he did not make it public, were not met.
In addition, considering the issues that the other members of the applicant's work team complained about in their petitions that formed the basis of the disciplinary investigation, the employer did not explain that there was a situation that made it compulsory to access the content of the applicant's email communication, and in the termination notice only the purposes of "investigating the allegations and understanding the relations between the team members" were stated. However, it could not be clearly revealed by the employer, and the concrete case was not discussed in this aspect by the courts of first instance that why it is deemed necessary and required to examine the email contents even though there are tools such as the analysis of the complaints and defenses of the parties, listening to the witnesses, examination of workplace records and examination of the processes and results of the projects carried out in order to achieve the same purpose.
On the other hand, the scope of the employer's intervention in the concrete case should be discussed. In this context, when the applicant's correspondence presented by the employer within the scope of the trial and the trial process are evaluated as a whole, it has been observed that the employer accessed to the contents of the correspondence against the consent of A.A.Y. and the applicant, and the correspondences with third parties are also examined, apart from the correspondence between A.A.Y. and the applicant, that the content of which is uncertain whether it is related to the subject or not is accessed by not conducting a limited audit with the claims that are based on the examination and that that these contents are also used as a basis for the termination of the employment contract. Therefore, it has been understood that employer did not content with the traffic of the emails, which are within the scope of the personal data of the applicant, and that the email contents were accessed and used in an uncertain manner.
It should be decided that the applicant's right to demand the protection of personal data, which is guaranteed in Article 20 of the Constitution, and the freedom of communication guaranteed in Article 22 of the Constitution have been violated since it is understood that positive obligations have not been fulfilled by the courts of first instance, which decide on the dispute arising from private law employment relations, by conducting a careful trial taking into account the constitutional guarantees mentioned above.
In the application examined, it has been concluded that the aforementioned right and freedom have been violated due to the lack of a trial taking into account the constitutional guarantees regarding the right to demand the protection of personal data and freedom of communication. Therefore, it is understood that the violation resulted from the court decision.
The Constitutional Court has considered that there is a legal benefit in retrial in order to eliminate the consequences of the violation of the right to demand the protection of personal data and the freedom of communication.
In the decision of the Constitutional Court, it has been stated that the retrial to be held is aimed at eliminating the violation and its consequences, according to paragraph (2) of Article 50 of the Law No. 6216, which includes a regulation specific to individual application, and that what needs to be done is to issue a new decision by giving a retrial decision, in accordance with the principles stated in the violation decision, which eliminates the reasons that led the Constitutional Court to the conclusion of the violation. For this reason, it decided to send a copy of the decision to the relevant court for retrial.
Also The Constitutional Court considered that the determination of the violation in the concrete case would be insufficient in terms of compensate the damages suffered by the applicant. Consequently, in order for the violation to be eliminated with all its consequences under the reinstatement rule, The Constitutional Court decided to pay the applicant a net 8.000 TL of non-pecuniary damage (due to the violation of the right to request the protection of personal data and the freedom of communication) in return for the non-pecuniary damage that cannot be remedied only with the detection of a violation and rejected the other claims for compensation.
CONCLUSION: There is no clear regulation in the Labor Legislation regarding whether or not the employer has the right to control and inspect the tools, computers etc. delivered to the employee by the employer, such as corporate email. The legislator has included more general regulations within the framework of the person's fundamental rights and freedoms in the Constitution. In the doctrine, it is considered that the employer's right to property and the employee's right to respect for private life compete. With the aforementioned decision of the Constitutional Court, it has become indisputable that the employer's right of management arising from the mere property right cannot be considered superior to the employee's right to respect for private life as one of the basic human rights (the employer's property right does not give an unlimited and absolute surveillance and supervision power). Therefore, although it was accepted in the decision of the Constitutional Court that the employer could conduct inspection and control within the scope of management authority regarding the work tools and equipment handed over to the employees at the workplace, it was seen that the limits of this were clearly drawn. In this context, a possible inspection and examination by the employer should be based on a legitimate reason, should be carried out within the framework of the principle of transparency, should be a method suitable for the purpose to be achieved, the same goal should not be achieved with a lighter intervention, the said inspection and examination should be mandatory and proportional, and should not undermine the employee's sense of justice. For these reasons, the work tools and equipment provided by the employer to the employee can only be used for business purposes and should not be used for special reasons (different exceptions can be made in this regard), and the rules to be determined by the employer should be established and communicated to the employee. To concretize in the case of corporate email, for reasons that can be seen as justified and legitimate, such as ensuring the effective execution of work and controlling the flow of information, protecting against criminal and legal liability due to the actions of the employee, measuring productivity or security concerns, it is appropriate to obtain the employee's written statement of acceptance by submitting to the employee's information and approval, such matters as the employer can monitor, control, examine and even use as evidence in favor of the employer when necessary. Otherwise, according to the conditions of the concrete case, the employer may be liable as a result of illegally monitoring the employee/employees.
Footnote
1 For the full text of the decision, see the Official Gazette published on 14.10.2020 (https://www.resmigazete.gov.tr/eskiler/2020/10/20201014-5.pdf)
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