News

28.04.2023

Constitutional Court’s Significant Decision on Monitoring Employee’s Whatsapp Conversations

The Turkish Constitutional Court (“the Court”), in its decision no: 2018/34548 and dated 28.12.2021, ruled that an employee’s right to respect for private life and freedom of communication were violated due to the employer’s obtaining of the correspondence of the applicant using the messaging application called WhatsApp and the termination of the employment contract on the basis of these correspondences. The decision was published in the Official Gazette on 11 February 2022 and is available online in Turkish here.

Background 

The applicant, an employee of a private company, works in a public hospital. The applicant’s employment contract was terminated after one of the directors of the hospital saw WhatsApp messages of the applicant on the computer allocated to the applicant. As a result of the lawsuit filed by the applicant with a reinstatement action, the first instance court ruled that the termination was invalid and ordered reinstatement of the applicant. In the appeal filed by the employer against the aforementioned decision, the regional court of appeals reversed the first decision and rejected the case.

The applicant filed an application to the Court alleging that the right to respect for private life and the freedom of communication were violated, due to the employer’s examination of the correspondence he sent via WhatsApp and the termination of his employment contract on the basis of these correspondences.

Constitutional Court’s Decision

According to the Court, although the employer’s control of the communication tools and gadgets made available to the employee is not specifically regulated in the Labor Law No. 4857, there is no obstacle to the implementation of the guarantees regarding the right to respect for private life and freedom of communication in Articles 20 and 22 of the Constitution in labor law disputes.

Regarding whether the interference by the employer is in accordance with the general principles, the Courts emphasises that the following facts should be taken into account: 

  • How the restrictive regulations are determined in the employment contracts according to the conditions of the concrete case, 

  • Whether the employees are informed about these regulations, 

  • Whether the legitimate aim that causes the interference with the fundamental rights of the employees is proportional to the intervention, 

  • Whether the termination of the contract is a reasonable and proportionate action against the actions or inactions of the employees.

The Court states that the employer’s authority to control the employee’s communication should be examined within the scope of the positive obligations of the state in the context of the right to respect for private life and freedom of communication and that a balance should be found between the employer’s interests and the employee’s fundamental rights and freedoms in disputes arising from the employer’s use of communication tools and equipment such as computers, the internet, and e-mail.

It is crucial to remember that the management authority of the employer is limited to the execution of the work in the workplace and the provision of the order and security of the workplace. In this context, considering that the communication tools made available at the workplace belong to the employer, accepting that the employer has an unlimited and absolute monitoring and control authority over the communication tools will not be compatible with the employee’s reasonable expectation of privacy.

In accordance with the evaluation by the Court, instead of accessing the content of the employee’s communication, it should be checked whether it is possible to implement less intrusive methods and measures. In order for the intervention by the employer to be considered necessary, it should not be possible to achieve the same goal with a milder intervention.

The interference will be deemed to be proportionate, if the data to be processed or used in any way through the control of the communication is limited to the intended purpose. Considering the impact of the monitoring on the employee and the consequences for the employee, it is necessary to look at whether the conflicting interests and rights of the parties are balanced fairly.

Another highly important point that should not be forgotten is that the employees should be fully and clearly notified beforehand about the monitoring of the communication made over the computer allocated for use in the workplace and the conditions of use of the communication tools. According to the Court’s evaluation, the notification should cover the followings:

  • The legal basis and purposes of the processing of personal data, 

  • The scope of the monitoring and data processing, 

  • The period of storage of the data, 

  • The rights of the data subject, 

  • The results of the monitoring and processing,

  • The possible beneficiaries of the data, and

  • The limitations stipulated by the employer regarding the use of communication tools.

In cases where such full and clear notification is not provided, it should be deemed as foreseeable by the employer that the employee can make personal correspondence through the workplace with the reasonable expectation that his fundamental rights and freedoms will also be protected at the workplace.

However, in the concrete case, it was not discussed by the courts of instance whether a clear notification as such was made or not. Also, the applicant claims that the contents of the messages were accessed unlawfully without his consent although they were not made public and without prior notification.

In addition, the Court claimed that the employer could not give a clear explanation that he had legally obtained the private messages on the applicant's computer and did not explain that there had been a situation that required access to the content of the communication on the applicant's computer.

As a result of all these evaluations, the Constitutional Court decided that the applicant’s right to respect for private life and freedom of communication were violated.

Conclusion

Personal data processing activities, such as monitoring employees and their communications, may have consequences against employers within the scope of both labor law, personal data protection law and moreover human rights law comprising all of these. In this respect, it can be said that the processes should be carried out more sensitively and transparently when it comes to processing personal data of employees.

To sum up, it would be fair to come up with the conclusion that the following elements are very important in employee monitoring activities:

  • Whether the employee to be monitored or audited is informed,

  • The legitimate aim to be achieved by monitoring,

  • The proportionality of the monitoring and its limitation to the purpose,

  • Whether it is possible to implement less intrusive methods and measures.

  • The data to be obtained is limited to the intended purpose.