With the judgement dated 28 December 2021 and numbered 2018/34584, the Constitutional Court discussed the employer’s examination of the employees’ correspondence sent through the messaging program called WhatsApp and the termination of the employment contracts based on these correspondences, within the scope of the right to privacy and freedom of communication.
In the said decision, the Constitutional Court ruled that the employer's obtaining of the contents of the messaging program called WhatsApp, which the applicant had installed on his computer for private use and where he sent private messages to his friends, violated the right to privacy and the freedom of communication.
As a private company employee, the applicant had been working as a data processing officer in a public hospital affiliated to the Ministry of Health, where the company provided services. In the case at hand, it was stated that one of the directors of the hospital saw the WhatsApp correspondences on the computer allocated to the applicant for his duty and obtained the contents of these correspondences, and the applicant’s employment contract was terminated based on these correspondences.
According to the judgement, the employer company requested the applicant's defense on the allegations that he, together with his colleagues, slandered and insulted the company and hospital managers via the messaging program, and that he disrupted the information system in an organized manner with his colleagues. Following the applicant's submission of his defense, his employment contract was terminated without notice.
In the reinstatement action filed by the applicant, he asserted that:
- The employment contract was unlawfully terminated,
- The messaging program containing the relevant correspondences was widely used,
- These correspondences should have been protected as personal data,
- The way these conversations were obtained was ambiguous,
- The correspondences were qualified as unlawful evidence.
The local court accepted the case and ruled to invalidate the termination and reinstate the applicant. However, upon the defendant’s appeal, the Regional Appellate Court entered final judgement to reverse the local court’s judgement and rejected the case. The reasoning of the decision stated that the messages on which the termination was based were correspondences of humiliating and insulting nature against the defendant and hospital managers.
Applicant’s Claims and Opinion of the Ministry
In the application made to the Constitutional Court, the applicant claimed that:
- WhatsApp messaging program was not accessible by third parties, therefore, the contents of the messages were qualified as unlawful evidence,
- It was not against the law for employees to establish communication groups among themselves and to be in communication with each other,
- Despite the fact that the examination of the correspondences in the messaging program WhatsApp constituted an unfair intervention in the sphere of right to privacy and freedom of communication, no such determination was made in the reinstatement lawsuit, and that the correspondence in question was obtained by the employer through unlawful methods,
- The right to privacy was violated as the messages, being personal data in nature, was used as evidence.
In the opinion of the Ministry, in summary, it was claimed that the applicant insulted the company and institution managers together with his friends through the messaging program called WhatsApp on his work computer, disrupted the information system in an organized manner with his colleagues, and that the public authorities did not directly interfere with the applicant's right to privacy.
Reasoning of the Constitutional Court’s Ruling
First of all, the Constitutional Court, with reference to the previous decisions, set forth that the following issues should be taken into consideration based on the conditions of each case for the resolution of the dispute in order to balance the interests within the scope of the positive obligations of the State and to examine the proportionality of the intervention:
- Whether the parties are informed about the restrictive and compelling regulations,
- Whether the legitimate aim causing the interference with the fundamental rights of the employees is proportional to the interference,
- Whether the termination of the contract is a reasonable and proportionate action against the actions or inactions of the employees.
In addition, the ruling emphasized that, in principle, the employer can monitor the communication tools offered to the employee and also impose restrictions on the use of communication tools within the scope of administrative authority for reasons that can be regarded as justified and legitimate, such as ensuring the control of the information flow and the effective conduct of business activities, protection against criminal and legal liability due to the employee’s actions, measuring efficiency or security concerns. However, it has been stated that the employer’s administrative authority was limited to the conduct of business activities and ensuring the order and security in the workplace.
In the case at hand, the Constitutional Court expressed that:
- WhatsApp correspondences, which constituted the basis for the termination, was obtained by the responsible supervisor as a result of applicant's leaving the computer turned on,
- The said messaging program was irrelevant to the functioning of the workplace,
- The applicant and his friends created the messaging group for messaging privately,
- The messages between the applicant and his colleagues included his private views about the workplace and the employees, and they contained some humiliating statements.
However, the Constitutional Court stated that the employer failed to set forth the following points:
- Legitimate reasons and grounds for the interference,
- The applicant's expectations were observed and their rights were regarded,
- The applicant was informed about the intervention.
In this context, it has been stated that the allegation that the contents of the messages, although the applicant did not make them public, were accessed unlawfully without the applicant’s consent and without prior notification, was not justified.
In addition to all of these, the Constitutional Court stated in its decision that the employer could not provide a sound explanation for obtaining the private messages on the applicant's computer through a lawful method. In this context, during the proceedings, the defendant’s attorney pointed out that the content of the messaging, which was the basis for the termination, was obtained by the responsible supervisor as a result of the applicant's leaving his computer on.
In this regard, the scope of the employer's intervention was also discussed in the decision, and it was concluded that termination of the employment contract by obtaining the contents of the messaging program called WhatsApp, which the applicant had installed on his computer for his own private use and where he exchanged private messages with his friends, violated the right to privacy and the freedom of communication.
In the Constitutional Court’s judgment regarding the examination of the correspondence of employees exchanged through the messaging program called WhatsApp and the termination of the employment contract based on these correspondences, the proportionality of the intervention and the importance of the information requirement were emphasized and the method by which the evidence relevant to the termination was obtained was examined. In this judgement, the Constitutional Court draws attention to the importance of the requirement to notify the employees and provides guidance regarding the proportionality of the intervention.
 Published in the Official Gazette (31747) dated 11 February 2022.
First published by ILO - Employment & Immigration Newsletter, in 27.04.2022