INSPECTION OF CORPORATE ELECTRONIC MAILS BY THE EMPLOYER 18 December 2020

Today, with digitalization, correspondence mostly takes place electronically. Especially in business life, internal and external correspondences are delivered via e-mail. Suitable working environments are created by allocating computers and e-mail addresses to the employees by the employer. These computers and e-mail addresses are used by the employees for the performance of the work in accordance with the employment contract, but are deemed to belong to the employer. In this framework, it is seen that in practice, employers inspect the e-mail correspondence of employees within the scope of management and inspection rights.

In a decision of the Court of Cassation on this subject, it has been accepted that the employer has the authority to inspect her/his own computer and e-mail addresses and e-mails sent to these addresses at all times. In the same decision; it has been stated that using the computers and e-mail addresses of the employer in private correspondence, making insulting words against the employer will constitute termination for default in accordance with the Article 25 / II of the Labor Law.[1]

Therefore, it is foreseen that the correspondence made by the employer using the computer and e-mail address allocated to the employee for the execution of the works can be controlled and as a result of this inspection, the employment contract can be terminated for default by determining one of the conditions listed in Article 25 of the Labor Law. However, while examining the legality of this inspection; the employees' right to privacy, freedom of communication and protection of personal data should be taken into account.

In the decision given as a result of an individual application made to the Constitutional Court ("Court") regarding the allegation that the privacy of private life was violated as a result of the examination of corporate e-mail accounts containing correspondence regarding the privacy of employees within a company; considering the case law of the European Court of Human Rights, it has been stated that the activities carried out within the framework of professional life cannot be excluded from the concept of private life.

In the continuation of this decision; it has been stated that the parties undertake some responsibilities in accordance with the employment contract and it has been accepted that it is possible for the employer to restrict some rights of the employees during working hours in order to ensure peace and trust in the workplace and for the employees to comply with some rules in order to achieve the determined working order. However, according to this decision;

“Such restrictive and specific rules must not harm the essence of the fundamental rights of the employees, these issues must be clearly included in the employment contracts signed, and the employees must be informed about these issues. In the absence of information and necessary warnings, employees will have a reasonable expectation that there will be no arbitrary intervention in their fundamental rights and freedoms, therefore, such interventions by employers against employees will not be accepted.”[2]

Thus, it is not possible for employers to intervene arbitrarily and unlimitedly in the private life areas and freedom of communication of employees. However, in cases where there are regulations that clearly include rules determined according to the commercial requirements and disciplinary understanding of the enterprise in a way that is not contrary to constitutional rights and freedoms, laws and international agreements, and in cases where employees are informed and warned about these regulations in advance, it is considered reasonable to take measures to restrict certain rights of employees, especially during working hours, and to force them not to break the rules. In cases where no information or warning is given to the employees within this framework, it should be accepted that employees will have a reasonable expectation that their rights and freedoms will not be interfered, and they should benefit from the assurances provided by these rights and freedoms.

Similarly, in another the Court decision; it has been accepted that the employee would have justifiable expectation that his / her fundamental rights and freedoms would also be protected in the workplace in cases where no full and clear information has been given in advance regarding the control of the communication made over the e-mail account and the conditions of use of the communication tools. It was underlined that with this expectation, the employee's ability to make personal correspondence via corporate e-mail is a situation that can be predicted by the employer. In terms of the happening subject to this decision; considering that the employer does not provide clear information that the communication made through the corporate e-mail account can be monitored and inspected, accessing the e-mail contents without the employee's consent and without prior notice, although the employee is not made public,  while it is possible to apply to lighter way such as listening to witnesses, workplace records and examining the processes and results of the projects carried out, the reason why the examination of e-mail contents is deemed necessary and essential by the employer is not discussed by the courts of instance. At the same time, it was pointed out that the scope of the intervention made by the employer should also be discussed, and that the contents of the correspondence of the employee were accessed without their consent and without a limited audit, content that is unclear whether it is relevant or not was also accessed. Thus, it has been accepted by the Court that the employee whose employment contract was terminated based on the correspondence obtained as a result of the inspecting of the corporate e-mail account, violated the right to demand protection of personal data and freedom of communication.^[3]

In the aforementioned decision, the criteria that should be taken into consideration for the inspection of the e-mail correspondence of the employees were also determined by the employer. Accordingly;

1. It should be examined whether the employer has legitimate grounds showing that it is justified to examine the communication tools and communication contents offered to the use of the employee.
2. The process of inspecting communication and processing personal data should be carried out transparently and employees should be informed in advance by the employer about the process. This information should at least cover the legal basis and purposes of the inspection of communication and the processing of personal data, the scope of the inspection and data processing, the period of storage of the data, the rights of the data owner, the results of the inspection and processing, and the potential beneficiaries of the data, at least to the extent that it is appropriate to the characteristics of the event.  In addition, the notification should include the limitations stipulated by the employer regarding the use of communication tools.
3. The interference made by the employer to the employee's right to demand protection of his / her personal data and freedom of communication must be related to the aim to be achieved and suitable to achieve this purpose. In addition, the data obtained through the inspection activity should be used by the employer in line with the intended purpose.
4. It should be checked whether it is possible to implement methods and measures that less interfere with the personal data of the employee, rather than entering the content of the employee's communication.
5. In order for the interference by the employer to demand protection of personal data and freedom of communication to be deemed proportionate, the data to be processed or used in any way with the control of communication should be limited to the intended purpose, and restriction or interference to exceed this purpose should not be allowed.
6. In addition, it is necessary to look at whether the conflicting interests and rights of the parties are balanced fairly, taking into account the effect of the inspection of the communication on the addressee employee and the consequences for the employee.