The decision of the Constitutional Court regarding the file (with the application number 2018/34548 and the decision dated 28.12.2021) was published at the Official Gazette on February 11, 2022. In the decision, it was indicated that the right to respect for private life and freedom of communication of the relevant employee, whose employment contract was terminated due to his WhatsApp correspondences that were obtained by the employer, was violated.

In the dispute:

  • While the employee stated that (i) the WhatsApp program is being used widely, (ii) these correspondences should be protected as personal data, (iii) the way these correspondences were obtained is ambiguous and (iv) the correspondences are deemed as unlawful evidence.
  • On the other hand, the employer argued that (i) the manager of the employee has seen the correspondences which were left open and (ii) therefore, the employer has accessed the employee’s WhatsApp correspondences since the program on the computer at the workplace was open.

As a result of the evaluation made on the issues with regards to the manner of obtaining the WhatsApp correspondences by employer, the legitimate interest in monitoring, the compulsory reason for accessing the correspondences, informing the employee, the fact that the correspondences are specific to personal use, the Constitutional Court has decided as follows:

  • The employer was not able to prove that such data was obtained through a lawful method and there was a situation that obliged access to the content of such correspondence, and
  • The employee was not completely and clearly informed that the correspondences made through the computers used at the workplace could be monitored (as the employer was not able to prove otherwise);
  • In this respect, the rights to respect for private life regulated under Article 20 of the Constitution and freedom of communication guaranteed under Article 22 of the Constitution were violated.

The complete text of the decision can be reached through the link below (which is in Turkish):

https://www.resmigazete.gov.tr/eskiler/2022/02/20220211-8.pdf

Batuhan Şahmay
Özlem Özdemir Yılmaz
Senior Associate | ozlem.ozdemir@bener.com
Behiç Ateş Gülenç
Associate | ates.gulenc@bener.com