The Constitutional Court’s decision No: 2019/25604, dated 21/09/2022 which was published in the Official Gazette dated 16/11/2022, has addressed important issues regarding the  processing of employee data within the scope of the right of control of the employer.

In the decisions of the Constitutional Court regarding similar cases, it was mentioned that in order for the employer to process employee data by exercising the right of control over the devices allocated to the use of the employee, employees must be informed about this issue, and the same was repeated in this decision. However, in this decision, not only this requirement is mentioned, but also points to be included within the scope of such information and the reasonable expectation of the employee regarding the protection of respect for his/her private life in the workplace are addressed.

A short summary of the decision and detailed information relating thereto are provided below.

  • Summary: The application concerns the allegations of the applicant, who works for a private company, that his right to respect for private life and freedom of communication were violated due to the examination of the texts within the mobile phone exchanged with a colleague, which was later served as grounds for termination by the employer, and the court accepted the applicant’s allegations.
  • Details: The employment contract of the applicant, an employee of a private company, was terminated by the employer on 31/10/2017 for just cause on the grounds of the contents of the text messages obtained as a result of the examination of the mobile phone given to Ö.Ç., who worked at the same workplace.

On 22/11/2017, the applicant filed a lawsuit for re-employment at Istanbul Anatolian 7th Labor Court, stating that his employment contract was terminated unfairly and that the content of the messages on which the termination was based should be protected as personal data. In the court decision rejecting the re-employment request, it was stated that since the mobile phone was provided by the employer, the relevant text messages were deemed to have been obtained in accordance with the law. The appeal against the decision was rejected by the 30th Civil Chamber of the Istanbul Regional Court of Appeals that has decided to dismiss the case definitively.

Subsequently, the applicant applied to the Constitutional Court with the allegations that the contents of the text messages were unlawfully obtained, that they were personal data and that his right to respect for private and family life was violated.

  • Conclusion and Judgment:

The Constitutional Court drew attention to the following points;

  • The managerial authority of the employer must be limited to the execution of the work in the workplace and ensuring the order and safety of the workplace.
  • In this context, the powers and rights of the employer are not unlimited, and the fundamental rights and freedoms granted to the employee which are the freedom of communication and the right to respect for private life in the current case are also protected within the boundaries of the workplace.
  • Within this framework, considering that the communication tools used in the workplace belong to the employer, accepting that the employer has an unlimited and absolute surveillance and control authority over the communication tools for this reason alone would not be in line with the rightful expectation of the employee that his fundamental rights and freedoms in a democratic society should be respected in the workplace.
  • In the current case, although it is stated in a general regulation titled “Communication Tools Policy” provided by the employer to the employees that the communication tools provided by the employer should be used for business purposes, it is not discussed whether the said document clearly regulates the authority to inspect and control the communication tools, the limits of use and the sanctions for exceeding these limits, and whether the said document was notified to the employees within the scope of the obligation to inform.
  • Moreover, considering that messaging applications can also be used personally, the seizure of the applicant’s own messages as a result of the examination of someone else’s mobile phone is contrary to the applicant’s reasonable expectation for the protection of his private life and the confidentiality of his communication.

As a result of all these considerations, the Constitutional Court decided that the applicant’s respect for private life guaranteed by Article 20 of the Constitution and the freedom of communication guaranteed by Article 22 of the Constitution were violated in the concrete case.

Batuhan Şahmay
Naz Ergörün
Associate | naz.ergorun@bener.com