Turkey: Constitutional Court's Recent Decision On Reviewing Employees' Corporate E-Mails By Employers

Reviewing employees' corporate e-mail addresses by employers and relying on any findings collected during the inspection in a potential termination has been a controversial issue in terms of protection of personal data and privacy. The Constitutional Court rendered two decisions within the last four years regarding the right to privacy and privacy of communication aspects of the matter. Both decisions particularly elaborate on information of employees.

Constitutional Court's Decision

In the decision of 17.10.2020 regarding the application no. 2016/13010¹ filed by an employee working at a law firm, the Constitutional Court ruled that the applicant's rights to protection of personal data and privacy of communication have been violated on grounds that the employer inspected the content of the applicant's corporate e-mail account without his knowledge, and terminated the employment contract based on the outcome of such inspection.

Summary of the Incident

In the incident subject to the decision, several employees in the applicant's team submitted complaints to the office management and claimed that i) the applicant was being rude to other team members, ii) the team manager lost their objectivity towards the applicant, and iii) the environment to conduct projects in peace was lost.

Following the complaints, the employer started to review the applicant's corporate e-mail correspondences. During the inspection conducted in scope of disciplinary investigation, the messages in the applicant's e-mail account were detected to be deleted. Next, the employer started to examine the team manager's e-mail account. Based on the correspondences obtained in this examination, the applicant's employment contract was terminated by relying on a just cause. In response to that, the applicant filed a re-instatement lawsuit, and the first instance court concluded that the applicant had used insulting expressions against other employees via their corporate e-mail address, which is known to be accessible by the employer. In this context, it decided that the employee's disturbing acts towards other employees constituted a just cause for termination and the termination was appropriate.

The applicant appealed the decision by arguing that relying on the e-mails in question as grounds for the termination violated their right to privacy and freedom of communication, yet the first instance court allowed these correspondences as evidence. Having reviewed the case, 9^th Civil Chamber of the Court of Cassation upheld the decision.

Applicant's Claims

In the application made before the Constitutional Court, the applicant claimed that their right to protection of personal data and freedom of communication were violated by asserting the following issues:

• The employer examined their personal correspondences on the corporate e-mail accounts without their consent,
• There are no written or verbal rules at the workplace indicating that employees' e-mails can be reviewed,
• The employer conducted the inspection to look for a reason for terminating the employment contract,
• The employer reviewed thousands of correspondences on the team manager's corporate e-mail account,
• Among these, the employer relied on personal e-mails written in belief that the employer would not read, which had been unknown to the employer until the inspection,
• In the re-instatement lawsuit, the correspondences in question were allowed as evidence,
• The first instance court failed to provide reasoning to meet their objections and evidence.

Constitutional Court's Assessment

The Constitutional Court determined that the employer had not explicitly informed the employees regarding the fact that the communications on corporate e-mail accounts could be monitored and reviewed. Therefore, the court stated that, although the applicant's employment contract had been terminated based on the outcome reach upon inspection made on e-mail correspondences, the employer failed to prove that it informed the employees as per privacy law rules in terms of:

• Legal grounds of processing of personal data,
• Purpose of processing the data,
• Scope of the data to be processed,
• Retention period of the data,
• Rights of the data subject,
• Results of the processing of data,
• Potential beneficiaries of the data.

The decision further stated that the employer failed to explain whether there had been a necessity to access the applicant's e-mail communications. In this scope, the decision underlined that the employer could not set forth the reasons for proceeding with e-mail examination as essential and necessary, whereas there were other tools serving the same purpose, such as:

• Analysing the parties' complaints and defences,
• Hearing witnesses,
• Examining workplace records, and
• Inspecting the processes and outcomes of projects.

This Constitutional Court's assessment regarding the employer's choice to proceed with e-mail reviewing in face of other means indicates that the employer's method of choice should also be discussed in terms of the principle of proportionality.

On the other hand, the decision ruled that the employer examined the correspondences with third parties in addition to the correspondences between the team manager and the applicant, and that the inspection was not limited to the allegations in question. Therefore, the employer did not confine itself to the email traffic information and accessed the e-mail contents with an uncertain scope.

Accordingly, the Constitutional Court ruled that the employer violated the right to protection of personal data and freedom of communication. In this respect, the Court sent the file to the first instance court for retrial, decided on moral compensation in favour of the applicant, and rejected other claims related to compensation.

Conclusion

In a previous decision of 24.03.2016 regarding another incident with application no. 2013/4825, the Constitutional Court found no violation of the right to privacy and privacy of communication, on grounds that the employer examined the employees' corporate e-mail accounts and relied on the obtained correspondences as evidence in the re-instatement lawsuit, by making prior notifications and warnings to the employees as necessary.

In the decision of 05.10.2017² regarding an incident where an employer examined the correspondences on the instant messaging account which had been created to carry out job-related communications, the Grand Chamber of the European Court of Human Rights underlined that it should be evaluated whether the employee had been priorly informed of the examination in question. In light of the above, the court ruled that the right to privacy under Article 8 of the European Convention of Human Rights has been violated.

On the other hand, Court of Cassation precedents³ indicate that the supreme court takes the view that employers can always monitor their own computers and e-mail addresses, as well as any e-mails sent thereto.

In the recent decision, the Constitutional Court stated that, employers employing a large number of employees and providing law services under a corporate structure, can keep the communication flow under control to ensure the efficient execution of work. In this regard, granting corporate e-mail addresses with access to their content and flow has been deemed to have a legitimate interest in terms of workplace management, and the court deemed such method convenient to achieve the intended purpose. However, the court lodged a violation decision, on grounds that the employees had not been priorly informed and provided with a privacy notice in terms of data processing activities that may be undertaken by the employer and the inspection had not been limited to the scope of the allegations, thus inspection scope was not found proportionate.

In light of the above, the decision implies that employers should act in accordance with the terms and conditions of information in order to inspect their employees' e-mail correspondences and to rely on the findings in a potential termination. The general principles section of the decision stressed that the information does not necessarily have to be done in a certain way, and employers can proceed with an appropriate method granting individuals with the opportunity to become aware of the processing of personal data and the inspection of communication. In addition, the decision indicates that in line with the information obligation to be fulfilled by the data controllers towards data subjects as per Law on Protection of Personal Data, the Constitutional Court seeks the following points in the privacy notices to be served on employees, in order for the employer to review the employees' e-mail correspondences and rely on the findings obtained in a potential termination:

1. Legal grounds and purposes of processing of personal data and inspection of communication,
2. Scope of processing of data and inspection,
3. Retention period of the data,
4. Rights of the data subject,
5. Results of processing and monitoring of data,
6. Potential beneficiaries of the data to be collected,
7. Limitations set out by employers regarding the use of communication tools.

It should be noted that the principles set forth by the Constitutional Court in the decision of 17.10.2020 regarding the application no. 2016/13010 must be strictly taken into account by all businesses, as inspecting corporate e-mail accounts by breaching these principles and using them against employees may raise serious administrative sanctions as per the Law on Protection of Personal Data, along with criminal liability in terms of violation of privacy of communication under Article 132 or violation of privacy under Article 134 of Turkish Criminal Code.

Footnotes

1. Dated 14 September 2020, published in the Official Gazette (31274)

2. Barbulescu v. Romania, App. No. 61496/08, 05 September 2017

3. Decision of the 9^th Civil Chamber of the Court of Cassation, dated 13.12.2010 and numbered 2009/447 E., 2010/37516 K. (In parallel, decision of the 22^nd Civil Chamber of the Court of Cassation dated 3.5.2016 and numbered E. 2016/6321, K. 2016/13143)

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.