Monitoring of employees’ electronic communications: Recent case-law in Turkey
The Turkish Constitutional Court recently delivered a judgment in the individual application of Celal Oraj Altunörgü concerning the monitoring of the employees’ electronic communications. The Court found the legal requirements for the monitoring to be compatible with the right to protection of personal data and freedom of communication, safeguarded respectively by Articles 20 and 22 of the Turkish Constitution.
The Context of the Application
The applicant was employed by a private bank under an employment contract. A disciplinary proceeding was initiated against him with the allegation that he was engaged in commercial activities on his account. The bank’s inspection report established inter alia that he used his corporate e-mail account for his commercial affairs; consequently, his employment contract was terminated. The applicant filed a lawsuit against his dismissal; however, this case was rejected, and the verdict was finalised. Thereafter, he lodged an individual application to the Constitutional Court and complained, in particular, that his employer’s decision to terminate his contract had been based on a breach of his right to respect for his private life and correspondence and that the domestic courts had failed to comply with their obligation to protect that right.
The Court’s Assessment
- General Principles
In its assessment, the Court determined six general principles to be applied in proceedings concerning the monitoring of an employee’s electronic communications by the employer. According to the Court:
- The employer must provide legitimate reasons to justify monitoring the communications and accessing the content.
- The employer must notify the employees that their communications and their content might be monitored.
- The intrusion by the employer must be related to and suitable for the aim of monitoring, and the results of this monitoring must be used to achieve the declared aim of the monitoring.
- When it is possible, a less intrusive method must be preferred to establish a monitoring system rather than directly accessing the content of the employee’s communication.
- The intrusion must be in line with the principle of proportionality.
- A fair balance between the interests and rights of the parties must be struck.
- Assessment of the Present Case
In the present case, the Court observed that the employment contract between parties prohibited the personal use of the corporate e-mail by employees and authorised the employer to monitor corporate e-mail account without noticing the employee.
The Court addressed that it is foreseeable for the employer that the employees could make personal correspondence through corporate e-mail in the absence of a clear prior notification by the employer. Therefore, the Court stated that a clear prior notification is a prerequisite for employers to monitor the e-mail accounts of the employees.
The Court ruled that if the employment contract between the parties involved a monitoring clause or if the employer issued a general notification to the employees regarding the monitoring, the consent of the employee will be assumed. Therefore, in the court case, the employee would be required to prove that he made a reservation to the contract or the notification.
In the present case, the Court considered the mentioned clause in the employment contract as an explicit and clear notification. The Court noted that the employer used the personal data only to prove his claim during the disciplinary and judicial process, and the applicant did not challenge the legitimacy of the declared aim of the monitoring. For these reasons, the Court determined that the intrusion was proportionate and legitimate, and therefore, found no violation of the right to the protection of personal data and freedom of communication.
The Importance of the Judgment
Only four months ago, the Court found a violation in E.Ü. application whose legal nature is very similar to this case. Therefore, it was a matter of curiosity whether the Court considered monitoring over employees’ electronic communication per se as a violation. In Celal Oraj Altunörgü, the Court found no violation in the monitoring over employees’ electronic communication while determining prior clear notification to the employee as the main criterion. As a result, this judgment confirmed that the Court follows Bărbulescu v Romania decision of the European Court of Human Rights.