The Constitutional Court Decision dated 21.09.2022 and with the Application Number 2019/25604 Has Been Published in the Official Gazette

16.11.2022 Senem İmamoğlu
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The Constitutional Court (Court) Decision dated 21.09.2022 and with the application number 2019/25604 (Decision) has been published in the Official Gazette dated 15.11.2022 and numbered 32014. The Court ruled that the right to respect to privacy and freedom of communication were violated in an application regarding an employer’s examination of the applicant’s telephone conversation with a coworker and the termination of the employee’s employment contract on the grounds thereof.

The Court evaluated the employer’s authority to control the employee’s communication in the context of respect to privacy and freedom of communication. At this point, the Court, after stating that the employer may control the communication tools provided to the employee limited to ensuring the order and security of the workplace, providing that the relevant authority is not unlimited, listed the principles that should be taken into consideration while surveilling of the communication of the employees. These principles can be listed as follows:

  • The employer must have legitimate justifications during the surveillance of the employee’s communications tools.
  • Since transparency is essential during the data processing activities, the employee, according to the characteristics of the case, should be informed by the employer related to at least the basis and purposes of the surveillance of communication and the processing of personal data, the scope, the retention period, the rights of the data subject, the consequences of the processing and the possible beneficiaries of the data.
  • The employer’s interference with the fundamental rights and freedoms of the employee must be suitable to achieve the desired purpose.
  • The employer’s interference must be necessary for the purpose.
  • The personal data that will be processed during the surveillance of the communication must be limited to the purpose.
  • The interests and rights of the employee whose communication is being surveilled and the employer should be fairly balanced.

In the concrete case, the Court found that the Regional Courts of Justice did not evaluate whether employer’s policy on communication tools includes the authority to control and examine the communication tools, the limits of their use, the sanctions to be imposed in case of exceeding the limits, and whether the policy was communicated to the employees in the context of the obligation to inform them. It also found that the interception of the applicant’s messages on someone else’s cell phone was contrary to the applicant’s reasonable expectation of respect to privacy and freedom of communication. For these reasons, the Court ruled that the applicant’s right to respect to privacy and freedom of communication were violated.

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