Individual Application

The Facts

The applicant, who had been working as a lawyer in a law office, was subjected to a disciplinary investigation due to the problems in the office. At the end of the investigation, the applicant’s employment contract was terminated on the basis of the contents of his correspondence via his corporate e-mail account which had been examined by his employer. The applicant unsuccessfully brought a declaratory action before the labour court, seeking to be reinstated. Following the applicant’s subsequent appeal, the Court of Cassation upheld the decision of the labour court.

The Applicant’s Allegations

The applicant claimed that his right to the protection of personal data and freedom of communication had been violated due to the examination of the content of his corporate e-mails by his employer and the termination of his employment contract on the basis of his correspondences.

The Court’s Assessment

In its previous judgments, the Court has generally determined the issues to be considered in disputes related to the monitoring of the means of communication by the employer. Accordingly, in the circumstances of the present case, such issues as to how the restrictive and obligatory regulations were determined in the employment contracts, whether the parties were informed of these regulations, whether the legitimate aim pursued by the interference with the fundamental rights of the employees was proportionate to the said interference, and whether the termination of the employment contract was reasonable and proportionate to the acts or inactiveness of the employees should be considered in the resolution of the dispute.

Given these issues, the employer’s authority to monitor the communication of the employee must be examined within the scope of the State’s positive obligations under the right to the protection of personal data and freedom of communication. Within this framework, the present case has been evaluated within the scope of the general principles set as regards the employer's monitoring of the employee’s corporate e-mail account.

In the present case, first of all, it should be examined whether there were legitimate reasons justifying the monitoring, by the employer, of the means of communication made available to the employee as well as of the content of his correspondence. In this case, the legitimacy of the reasons submitted by the employer should be examined also considering the characteristics of the work and the workplace. In such an examination, a distinction should be made between the examination of the communication flow and of the contents thereof, and more justified grounds should be sought to necessitate the examination of the latter.

In cases where there is no full and explicit prior notification that the communications made through e-mail accounts may be monitored, the employer is to foresee that the employee may make personal correspondence via his corporate e-mail account. Therefore, employees may have a reasonable expectation that there will be no interference with their rights and freedoms in the absence of an explicit notification.

In the present case, the employer had not made an explicit notification that the applicant’s correspondence via his corporate e-mail account might be monitored. In addition, the applicant’s employment contract had been terminated on the basis of the contents of his correspondence via his e-mail account. However, during the proceedings, the employer, in his capacity as the defendant, failed to demonstrate that a notification had been made to the applicant to inform him of the legal ground of the processing of his personal data and the purpose of such processing. In this scope, the inferior courts did not discuss whether such notification had been made, and therefore they failed to address the applicant’s substantial allegations that the content of his e-mails had been accessed without his consent and without a prior notification.

In addition, it has been observed that the employer did not provide any explanation as to the existence of a situation requiring access to the content of the applicant’s e-mail account, and that the termination notice only stated the phrase "to investigate the allegations and to understand the relations between the team members" as the purpose of the access to the relevant data. However, although there had been different means in terms of achieving the same purpose, it was not clearly stated by the employer why the monitoring of e-mail contents had been deemed compulsory and necessary. The inferior courts also failed to discuss this aspect of the case.

Besides, the extent of the interference made by the employer must be discussed. In this context, it has been observed that the employer had accessed the contents of the applicant’s correspondences without the team leader’s and his consent, that the correspondences with third parties apart from the correspondences between the team leader and the applicant had also been examined, and that the contents –relevant or irrelevant– had also been accessed, which were all based on in the termination of the applicant’s employment contract. Therefore, it has been understood that the contents of the applicant’s e-mail correspondences, which was his personal data, had been accessed and used, their scope being uncertain.

For the reasons explained above, the inferior courts that are authorised to settle the disputes arising from the labour relations under private law failed to observe the relevant constitutional safeguards and conduct the proceedings diligently, thereby to fulfil the relevant positive obligations.

Consequently, the Court has found violations of the right to the protection of personal data and the freedom of communication.