The Turkish Constitutional Court ruled that the employer had the right to monitor company emails

On 5 February 2021, the Turkish Constitutional Court published Decision 2018/31036 (dated 12 January 2021 and published in the Official Gazette), which found that a Turkish company had not violated data protection and freedom of communication by monitoring an employee's company emails.

The decision resulted from an application by an individual who claimed that his termination was a violation of privacy and freedom of communication based on evidence obtained from the plaintiff's company emails.

Background

The claimant worked as a customer service representative at a private bank. According to the employment contract between the employer and the claimant (i.e. the employee), the employee was entitled to use the company email for work-related purposes only and the company email account could be monitored by the employer without prior notice.

Following allegations that the applicant worked for a company owned by his wife, the employer launched an internal investigation, which included monitoring the employee's company email account. As a result, it was found that the applicant's email correspondence provided evidence that the person worked for his spouse's company. Ultimately, the employer terminated the individual on the grounds that the applicant had failed to comply with the bank's rules and his job description by doing work for his spouse during his working hours at the bank, thereby neglecting his basic duties to the employer and creating negativity in the workplace.

After his dismissal, the plaintiff initiated a reinstatement action, which was eventually dismissed because the dismissal was based on reasons deemed acceptable (i.e. providing time for another business entity during working hours).

The applicant appealed against this decision to the Regional Court, which confirmed the decision of the court of first instance. The applicant then brought an individual application before the Constitutional Court on the grounds that the surveillance of his company e-mails violated his privacy and freedom of communication.

First and foremost, the court held that employers are entitled to monitor and track communication devices assigned to employees in order to, inter alia, maintain operations, control the flow of information and ensure legal and criminal protection against employees' actions. However, the court emphasised that this right of the employer can only be exercised in compliance with the following conditions:

• the employer must have a legitimate reason for conducting the surveillance;
• this must be communicated to the employee in advance that the employer is allowed to monitor and track communication;
• the interference with an employee's rights and freedoms must be consistent with the employer's objectives and purposes;
• the employer should not have a less invasive way of achieving these goals;
• the data obtained must be related and limited to the objectives sought by the employer; and
• the rights and freedoms of both parties must be balanced.

Reviewing the case at hand within these principles, the court ruled that no further notice was required as the employee was informed in advance of possible monitoring in his employment contract, with a clause stating that the bank's management could monitor company emails at any time if the monitoring was carried out in a manner relevant to the employer's objectives and only data relevant to those objectives was obtained.

Furthermore, the court emphasised that since the employer is a company operating in the financial sector with an excessive number of employees, the monitoring of personal data and communications through company emails can be done to ensure the effective management of work. Consequently, the court ruled that an employer who offers the use of company emails and has access to these communications can monitor these communications if it is within its legitimate interests to do so and if the monitoring is consistent with the employer's purposes.

Ultimately, the court ruled that the plaintiff's personal data and freedom of communication were not violated in this case.

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