Personal data is defined as any specific or identifiable information regarding a person, and it is seen that the relevant definition is broad. In this regard, individuals’ identity information, credit card and bank account information, phone calls and message information can be considered as personal data. In accordance with the Law on the Protection of Personal Data No. 6698, which entered into force on 07.04.2016, it is aimed to determine the obligations of real and legal persons who process personal data, as well as regulations concerning the protection of personal data and privacy of private life. In this respect, in accordance with the decision of the Constitutional Court dated 12.01.2021, which we provide below as an example, the question of whether the employer can process the e-mail correspondence of the employee, which means personal data, and in the event that the employer can process such data under what conditions he may process has come to the fore.
Pursuant to labour law, the concept of personal data can be considered as all information, signs or notes that are stored in the computer environment or in personal files, that cover the private and professional life of the employee, and that directly or indirectly concern the employee. Employee’s identity information, address, profession, marital status, date of birth, nationality, conviction status, political or union activities, health and disease status, e-mail correspondence, religion, race, ethnic origin, sexual orientation, etc. information are concrete examples of personal data that must be protected.
Nowadays, employees do not benefit from technological developments and the opportunities provided by the internet, limited only to the performance of the job. Many employees may engage in activities unrelated to their work during working hours, or they may use their working hours inefficiently by visiting illegal and/or unrelated websites. This situation undermines the trust relationship between the employee and the employer; causes the employer to control the employee’s internet use, e-mail traffic, phone calls for reasons such as “protection of resources, operational reasons, control of information flow, protection against civil and criminal liability or compliance with the law, legal liability requirement, performance evaluation, efficiency measure, security concerns”.
During the continuation of the employment relationship, the employer’s wiretapping of the employees, recording such conversations, monitoring their internet usage and e-mails, monitoring their behaviour in the workplace with video and audio recording tools, surveillance of the employees in this way and accessing their personal data can be interpreted as a violation of the employee’s right to private life in certain circumstances.
When the employer listens to the employee’s phone calls or monitors the employee’s behaviour, there must be a reason for compliance with the law so that this attitude of the employer is not accepted as an intervention in the employee’s private life. In this case, a connection should be established between the economic benefit of the employer in monitoring and surveillance of the employee and the employee’s consent to the monitoring within the framework of the obligation of loyalty, and the employee must have consented to this monitoring and surveillance practice.
In this context, while controlling the employees with cameras in the enterprise or workplace can only be carried out for the purpose of ensuring workplace safety, the surveillance of the workplace with a camera should be brought to the agenda only if there is a suspicion that a crime will be committed by certain people determined by the employer. In addition, the aforementioned situation must be proven by the Employer. In the absence of the specified conditions, video recordings cannot be used as evidence in lawsuits filed on the grounds that the employment contract was terminated unjustly. On the other hand, it is not possible to accept the general camera recordings taken by the Employer are lawful. As a matter of fact, in this case, the employer’s interest cannot be put before against such an attack on personal rights. In other words, unless it is necessary; observing the employees with a hidden camera, filming the employee, listening to their phones, constitutes a violation of personal rights.
Conditions for Employer’s Inspection of Employee’s Electronic Correspondence Within the Framework of the Constitutional Court Decision dated 12.01.2021
In line with the aforementioned decision of the Constitutional Court; It has been decided that the employer can control the corporate e-mail addresses of its employees, in the event that the employer has legitimate justifications in order to justify the examination of the communication tools and communication contents made available to the employee, in the event that the employees have been fully informed in advance in a transparent manner, and in the event that the restrictions envisaged regarding the use of communication tools have been determined by the employer.
The scope of the employer’s intervention in the concrete case subject to the relevant decision should also be discussed. In this context, the employer examined the contents of the messages supporting the claim that the applicant was working in another job and used them only to prove his claim in the judicial process. The employer carried out an inspection concerning the purpose of observing. However, in the trial process, the Court has reached a conclusion by evaluating witness statements, employment contract, workplace file and other documents submitted to the file, and it has been concluded that relevant and sufficient justifications are presented in the decision. The applicant also actively participated in the proceedings, and the courts of instance, which decided on the dispute, fulfilled their obligations in the proceedings. The Constitutional Court, within the reasons explained, decided that the right to demand the protection of personal data and the freedom of communication were not violated.
As a result, employers should delimit the use of corporate e-mails concerning private purposes other than work within the provisions they provide in their employment contracts, and they should indicate in the contract provisions that the opposite behaviour will be sanctioned. The employee, who is a party to the contract, should be expected to act in accordance with this provision within the scope of the principle of commitment to the contract. The reasonable and legitimate aim of the employer in controlling corporate e-mails has been clearly expressed by the Constitutional Court in its decisions in recent years. As a matter of fact, reasons such as effective execution of the work and controlling the flow of information, protection of the employee against criminal and civil liability related to his actions, measuring his productivity and general security concerns are evaluated within this scope. As can be seen in the aforementioned Constitutional Court decision, a balance should be established between the employer’s interests and the employee’s fundamental rights and freedoms in disputes that arise due to the fact that employers who want to benefit from technological developments offer communication tools such as computers, internet and e-mail to their employees.
Damla Davran Işlak, Attorney at Law