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Turkish Constitutional Court Decision on Employee's Right to Request Protection of Personal Data

Turkish Constitutional Court (“Court”) issued its decision no.2018/31036 regarding the termination of employment contract because of the correspondences of the employee in its corporate e-mail content. The decision was published in the Official Gazette dated 05.02.2021 numbered 31386. The Court ruled that the right to demand protection of personal data within the scope of the right to respect for private life guaranteed in Article 20 of the Constitution and freedom of communication guaranteed in Article 22 of the Constitution were not violated. The full text of the decision can be reached via https://www.resmigazete.gov.tr/eskiler/2021/02/20210205-15.pdf


Background of the Decision

The applicant was working as a customer relations manager in a private bank under an indefinite-term employment contract dated 14.05.2007. In the article titled “Use of Fixtures and Electronic Mail” of the employment contract, it is stated that the employee is obliged to use the corporate e-mail address only for business purposes. Upon the claim that the applicant was working for a company registered on his wife, an inspector examination was conducted and the applicant's defense on the matter was taken by the employer.


As a result of the examination, it was determined that, the applicant's spouse established a company on 01.04.2014, the applicant sent various documents regarding the payments via corporate e-mail to the accountant of this company, the applicant negotiated a loan with other banks via corporate e-mail and applied for a loan, he sent some documents related to the products in stock from his personal e-mail account to his corporate e-mail account and his wife's account was frequently viewed.


The applicant's employment contract was terminated with a written notification dated 11.05.2016. In the aforementioned notification, it was emphasized that the applicant was engaged in commercial activities over his wife’s business during his working hours, in contradiction with his duty and against the bank rules, that the applicant neglected his main duty and caused negativity in the working place. It has been stated that the employment contract of the employee was terminated in accordance with the articles 17 and 18 of the Labor Law numbered 4857 within the framework of the above-mentioned reasons.


The applicant firstly, filed a reemployment lawsuit before Amasya Labor Court. The Court dismissed the case on 27.12.2017. In the justification of the decision; by evaluating of the witness statements, the defense of the applicant, the documents submitted to the file and the e-mail contents, it was stated that, the applicant was following his wife's business, and this was also accepted by the applicant. Considering all these points, The Court stated that the employer cannot expect to continue an employment relationship with the employee, and the termination of the employment contract is based on valid reasons.


The applicant’s attorney applied for an appeal, stating that the e-mail examination of the employer considered a violation of his right to respect for private life by the principles of the European Court of Human Rights. The court of appeal ruled that the appeal objection was dismissed on the grounds that the evidence was not inaccurate and it was understood that the defendant proved the valid reason for the termination of the employment contract.


Scope of the Decision of the Court

The applicant made an individual application on 03.10.2018 before the Court and stated that his correspondences with his corporate e-mail accounts were examined without informing and without his consent and that, the employment contract was unfairly terminated based on these correspondences. In addition, the applicant alleged that his right to respect for his private life and freedom of communication were violated as a result of the bank’s review of the e-mail contents and acceptance of these contents as the main evidence for the judgement.


The Court stated that access to the corporate e-mail contents, the use and processing of these contents should be examined in terms of the right to demand protection of personal data within the scope of respect for private life and freedom of communication.


When the applicant's employment contract was examined, the Labor Court found that the corporate e-mail allocated to the applicant would only be used for business purposes and that the corporate e-mail could be controlled by the bank administration without notice. The Court stated that when the situation was observed, the corporate e-mail presented to the use of the applicant could be audited and that the employment contract has been clearly notified in advance regarding the procedure of the audit, and that the employee has given his consent to this control and examination authority by signing the employment contract.


However, the Court stated that the scope of the intervention made by the employer in the case should be discussed. In this context, the correspondences of the applicant were evaluated as a whole within the scope of the trial, it was determined that the applicant was working for another job and employer used the correspondences only in the judicial process to prove his claim. In this case, the Court concluded that the employer carried out an inspection within the scope of the examination and that the result obtained was used for the given purpose. When the Court examined the trial process, it was seen that the court of first instance reached a conclusion by evaluating not only the information and documents obtained by examining the corporate e-mail, but also the witness statements, employment contract and other documents submitted to the file.


In conclusion, for the reasons explained, the Court decided that the applicant's right to request the protection of personal data within the scope of respect for private life guaranteed in Article 20 of the Constitution and the freedom of communication guaranteed in Article 22 of the Constitution were not violated, as positive obligations were fulfilled by the relevant courts.


Authors: Bilge Derinbay, Aysu Eren

Article contact: Bilge Derinbay / E-mail: bilge.derinbay@nsn-law.com