CONSTITUTIONAL COURT DECISION ON THE REVIEW OF CORPORATE E-MAIL CONTENT OF PRIVATE COMPANY EMPLOYEES BY THE EMPLOYER AND SUBJECT THE CONTENT OF THE CORPORATE TO DISCIPLINARY SANCTIONS

Summary: In the Constitutional Court decision dated 17.09.2020; It was concluded that the examination of the correspondence contents in the work e-mail account by the employer without the knowledge of the employee violated the confidentiality of right of privacy and freedom of communication, which is a constitutional right. According to the conclusion reached within the scope of both national and international legislation and the case law of the European Court of Human Rights; employers should have a legitimate justification for their intervention in the fundamental rights of their personnel, the personnel should be informed in advance, the examination and the limits should be determined transparently, the intervention should be carried out as narrowly as possible, the intervention should be used as a last resort and the conflict of interest between the intervention and personnel rights should be balanced. 

With the decision taken by the Constitutional Court on 17.09.2020; ıt was concluded that the fact that the e-mails sent by the applicant, who is a lawyer, was inspected by the employer and dissolution of correspondence contentswere violated the privacy of private life, the right to demand protection of personal data and freedom of communication. According to the said decision; while the applicant was working in an attorney partnership, their sent mails to another lawyer, who was also their teammate and supervisor, through the e-mail address allocated to the applicant’s use, which includes an extension on behalf of the attorney partnership. The employment contract of the applicant lawyer was immediately terminated by the employer for justified reasons, on the grounds that their frequently sent an e-mail in an unseemly manner that was threatening, forcing their to take a stand in their favor, and insulting. The decision to examine the contents of this interview by the employer was taken during the research process following the complaint petitions written by the applicant’s colleagues to the employer and a retrospective examination was carried out. At the same time, it was understood that some e-mails were deleted due to some gaps in the correspondence history, and some correspondence of the other lawyer, who was the opposite party of the correspondence and who was the supervisor of the applicant, was examined retrospectively. Although, during this process, a meeting was held between the applicant and the employer in which the allegations were evaluated and the written defenses of the applicant were received; as a result of the e-mail examination conducted between 10.01.2015 and 12.01.2015, the attorney partnership terminated the employment contract of the applicant as of 14.01.2015. The attorney partnership employer alleged that the said lawyer knew that the contents of the e-mail could be checked at any time in the termination notification and that this was also stored on the corporate internet for security.

Upon this, the applicant, whose employment contract was terminated, filed a lawsuit with the request of reinstatement, but the local court decided to dismiss the case on 20.08.2015. The plaintiff filed an appeal against the decision of the local court, but at this stage, the decision was approved by the 9th Civil Chamber of the Supreme Court on 12.05.2016. With the exhaustion of the legal remedy, the applicant made an individual application to the Constitutional Court on 15.07.2016 with the claim of violation of rights. As a result of the Constitutional Court’s assessment regarding whether the e-mail contents offered by the employer to the use of the employee can be read, the allegations of the applicant’s violation of rights were found appropriate. Decided that the applicant’s right to request the protection of personal data guaranteed in Article 20 of the Constitution and the freedom of communication guaranteed in Article 22 of the Constitution was violated, that the file be sent to the Local Court for retrial, and also to pay the applicant net 8,000 TL in non-pecuniary damage. The decision of the General Assembly of the Constitutional Court numbered 2016/13010 and dated 17.09.2020 was published in the Official Gazette dated 14.10.2020 and numbered 31274.

As a basis for this decision of the Constitutional Court, the Personal Data Protection Law No. 6698; the purpose is based on the terms of the processing of personal data and the rights of the person concerned with the obligation to inform the data controller. Reference is made to the provision of privacy of private life in the Universal Declaration of Human Rights, and the legislative arrangements adopted by the United Nations General Assembly and the European Union. Accordingly, in the concrete case, the e-mails were audited by the employer and not only the data flow, but also the data content; However, the processing is lawful and fair, correctness, processing for specific and legitimate purposes, the persons concerned have access, observing the prevention of discrimination, ensuring data security can be carried out in accordance with the principles of auditing and sanctioning by official institutions in case of violation. As a matter of fact, as is valid in our domestic law; It is the general rule that data can only be processed or stored by certain persons within the scope of the explicit consent of the person concerned and limited by the purpose, time and place. Exceptions to explicit consent are the cases stipulated by laws in terms of personal data, except for those with special characteristics such as health and sexual life. Even in this case, the legal rights of the person concerned with other processing and storage conditions still exist. Therefore, even if it is claimed by the employer that it should be known that these correspondences can be controlled; As a result of this decision of the Constitutional Court, it was stated that all employees should be clearly informed that corporate e-mails can be read at the workplace. In this case, if there is an e-mail or other electronic or written equipment with personal data allocated to the personnel by the employer; this issue must be notified to the staff prior to the examination so that the contents of these are examined and audited by the employer or these contents can be subject to disciplinary sanctions such as any warning or termination. In addition, obtaining the express consent of the personnel on this issue is another obligation. Although there is no written requirement for the express consent of the staff, it is understood that it would be beneficial to be in writing in order to prove the existence of consent by the employers. Otherwise, it can be accepted that there will be a reasonable expectation that the employer will not interfere with the rights and freedoms of the personnel. Therefore, it will naturally occur as a result of the personnel benefiting from the guarantees provided by fundamental rights and freedoms.

In case of contradiction to the matters mentioned above; Inspection of the e-mail contents offered by the employer to the use of the personnel in the workplace means the violation of Article 20 of the Constitution titled “Right of Privacy” and Article 22 titled “Freedom of Communication”. Because, as based on this decision of the Constitutional Court, in line with the established jurisprudence of the European Court of Human Rights, the concept of “private life” is widely interpreted, and professional life is evaluated within private life. For example, in the Barbulescu v.Romania judgment, one of the precedents of the ECHR; It concerns the supervision of the job e-mail account of the applicant working as an engineer in a workplace by the employer without prior notice to the applicant. When it was determined that the personnel used the internet for personal purposes by texting with his brother and fiancee via this corporate e-mail address, it was decided that the termination of the employment contract violated the privacy of private life. The striking point at this point; while there may be violations of personal data and private life even in the examination of communication flow, the examination of communication content should be handled more meticulously compared to the other. In addition to questioning the existence of a legal basis for the content audit, there is also a legitimate justification for this situation. In other words, if it is possible to see the intended result with a method that constitutes a lighter intervention without conducting a content review, this method should be preferred first. Using the content review without a last resort will again constitute a violation of rights.

On the other hand, at the point of violation of the freedom of communication,it is accepted that this right carries the confidentiality of the content. Both private life and personal data and the rights guaranteed by the Constitution within the scope of the freedom of communication are not only legislative arrangements, but also create some positive obligations for the State. In this regard, the state has the obligation to establish the relevant legal infrastructure and to provide assurances for a fair trial of possible disputes. In this way, by resolving the conflict of interest between the employer and the employees, it will be possible to examine whether there is an intervention to fundamental rights based on a legitimate aim and measured.

Within the framework of the Constitutional Court decision given; ın order to interfere with the fundamental rights of the personnel by the employer and similar third parties, there are some requirements, provided that they are evaluated in each concrete case. Within these requirements; It is based on an honest justification, conforms to the principles of democratic society, the process proceeds transparently, the employer informs the employees about the process in advance, the employees are also aware of these processes, the intervention is related to the aim to be achieved and is suitable for the realization of this purpose, lighter it is not possible to reach it with an intervention, the data accessed is limited to the purpose, and a fair balance of rights is maintained.

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