The Ruling of The Turkish Constitutional Court Dated 12.01.2021 Regarding the  Employer’s Monitoring of Employee’s Corporate E-mail

The Ruling of The Turkish Constitutional Court Dated 12.01.2021 Regarding the  Employer’s Monitoring of Employee’s Corporate E-mail

In its decision dated 14.10.2020, the Turkish Constitutional Court [“The Court”] ruled that applicant’s right to privacy had been violated, stressing that the means of communication may only be monitored by the employer if there is a legitimate reason for the monitoring and if the employee had been explicitly notified before the inspection.

However, in its decision dated 12.01.2021, the Court has delineated the limits of an employer’s right to monitor employees’ corporate e-mails and work computers stating that if an explicit notification on the terms of use of the means of communication and the employer’s right to monitor e-mail communications has been made in advance, there is no need to receive an additional consent before carrying out an inspection when the inspection fits to the purpose. 

Summary of the Case and the Decision 

In the incident subject to the decision dated 12.01.2021, the applicant worked in a private bank under an indefinite-term employment contract and had a corporate e-mail account assigned to him. The employment contract drafted between the parties stipulated that the aforementioned e-mail account was to be used for work-related purposes only, that the content of the e-mail account could be audited by the bank management without prior notice, and that the employee would not be entitled to raise any objection to this matter. 

Based on the claim that the applicant was conducting external works related to a business registered in the name of his wife, the bank performed an internal inspection. As a result of the examination, correspondences and documents proving that the applicant was engaged in commercial activities via the business of his wife within working hours and therefore neglecting his primary duties were found, and a report was drawn up accordingly The employment contract of the applicant was then terminated by written notice, and the applicant, in response, filed a reinstatement lawsuit. 

The court of first instance dismissed the case on the grounds that the applicant was proven to be dealing with private matters within working hours which constituted a breach of the employment contract. Even though the applicant appealed this decision asserting that his right to privacy had been violated, the Regional Court of Justice rejected the appeal and the decision of the court of first instance became final.

The applicant then filed an individual application to the Court with the allegation of violation of the right to privacy and freedom of communication. The Court rejected the application stating that considering the employer had a large number of employees and provides financial services, it was within its legitimate interest to have access to the communication flow as well as the content of corporate e-mails, and  that the employment contract clearly stipulated that the corporate e-mail was to be used exclusively for business activity and that an audit could be undertaken by the bank management without additional consent. Furthermore, the fact that the employer used the collected data solely in the jurisdiction process was considered to be fit to purpose.

In its decision, the Court set forth the following  criteria to be applied in terms of the legitimacy of the interventions against the protection of personal data and freedom of communication:

1. It should be evaluated whether there are overriding legitimate grounds for the monitoring of the means and content of the communication. Moreover, a distinction should be made between monitoring of the communication and monitoring of its content, and higher standards should be applied for justification of the latter.

2. The monitoring of the communication and processing of personal data must be performed in a transparent manner and the employer must inform the employees in advance,

3. The intervention must be convenient for its purpose and data obtained must be used for the given purpose.

4. The intervention must be evaluated in terms of proportionality and necessity.

5. Considering the impact and the consequences of the intervention for the employee, conflicting interests and rights must be balanced.

Conclusion

According to the foregoing decisions of the Court, corporate communication tools and their content may be monitored by employers as long as the employee has been explicitly informed and his/her consent to this matter has been obtained.  Also, in any case, employers’ intervention should be assessed in terms of balance of interests, convenience, necessity, proportionality and legitimate interest.