A new Ruling of the Constitutional Court on the Confidentiality of Personal Data of the Worker

November 15, 2022by Bünyamin Esen0

The Turkish Constitutional Court signed an important decision in the nature of case law regarding the protection of personal data of workers. The Turkish Constitutional Court evaluated the application of a worker who was dismissed because of his correspondence with his colleague via SMS system. In the final decision, the Supreme Court, emphasizing that messaging programs can be used personally, determined “unauthorized access by the employer to the employee’s personal correspondence” as a violation of rights.

According to the decision published in today’s issue of the Turkish Official Gazette (dated 15th of November 2022), as a result of the unauthorized examination of the mobile phone correspondence of the applicant worker working in a private company with a colleague over the telephone provided by the company, the employer’s employment contract was terminated on the grounds of the contents of the correspondence.

Claiming that the termination was unfair, the applicant worker filed a lawsuit for reemployment, but the relevant labour court dismissed the lawsuit. Thereupon, the applicant filed an individual application to the Constitutional Court, claiming that the right to respect for private life and freedom of communication were violated.

The Supreme Court, examining the application, decided that the right to respect for private life and the freedom of communication were violated.

In the decision of the Constitutional Court, it was stated that “In a democratic society, the process of controlling communication and processing personal data should be carried out in a transparent manner, and as a requirement of this, employees should be informed about the process in advance by the employer”.

Despite the fact that the examination of the applicant’s correspondence on his mobile phone constitutes an unfair intervention in his private life and freedom of communication, it was emphasized in the decision that no such determination was made in the reemployment lawsuit he filed, and it was emphasized that he claimed that his correspondence was obtained by unlawful methods by the employer.

In the decision, which included the finding that “There is no special regulation in the Turkish Labour Code No. 4857 regarding the employer’s control of the communication tools made available to the employee”, it was stated that the messaging between the applicant and his colleague in the incident subject to the application contained private opinions about the employer and employees, and some humiliating statements in the content are being determined.

In the decision pointing out that the Supreme Court has given violation decisions in similar applications before, the following was noted:

“Considering that messaging programs can also be used personally, it is clear that the control of someone else’s mobile phone and the seizure of the applicant’s messages are contrary to the applicant’s reasonable expectation of protecting the privacy of his private life and confidentiality of correspondence. No evaluation has been made on whether it is necessary to take a basis for termination and its effect on the applicant’s private life and communication.

As it was understood that the positive obligations were not fulfilled by the courts of instance, which decided on the dispute arising from private labour law relations with the reasons explained above; by conducting a careful trial taking into account the above-mentioned constitutional guarantees, the applicant’s right to respect for private life, which is guaranteed in the Article 20 of the Turkish Constitution, and the applicant’s freedom of communicartion which is guaranteed in the Article 22 of the Turkish Constitution are found to be violated in the case.

Bünyamin Esen

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