SCOPE OF THE EMPLOYEES' DUTY OF CONFIDENTIALITY 15 December 2020

1. DUTY OF LOYALTY

To better understand the scope of the obligation of confidentiality (secrecy) of the employee, which demonstrates itself as a sub-obligation of the duty of loyalty, it is necessary to address the duty of loyalty first. However, all statements made for the duty of loyalty will also apply to the obligation of confidentiality.

Duty of loyalty is an ancillary obligation in addition to the obligation of principal performance. In this respect, the duty of loyalty is defined as the employee's sincere attachment to the employer while under the employer's order, the protection of the economic interests of the employer, and the avoidance of the actions that may cause harm and loss.

Duty of loyalty is regulated in the 396^th article of the Turkish Code of Obligations ("TCO") numbered 6098 as follows:

"The worker is obliged to do the work undertaken diligently and act loyally in protecting the legitimate interests of the employer.

The worker is obliged to properly use any machines, tools and equipment, technical systems, facilities belonging to the employer and alongside this to take care of materials handed over to him to do the work.

The worker, as long as the service relation, may not serve any third person for any wage contrary to the loyalty obligation and may not engage in competition especially with its employer.

The worker may not use any information learned during doing service, especially including secrets of production and business, on his behalf nor disclose to any third parties. He is obliged to keep secret after the termination of service related to the extent necessary to protect the legitimate interests of the employer."

However, looking at the provision, it is seen that the scope and limits of the duty of loyalty are not determined, only exemplary situations and sub-obligations are specified. For this reason, it can be said that it is not possible to count individual cases that constitute a breach of the duty of loyalty. Whether an act constitutes a breach of the duty of loyalty or not is determined by the judge by considering the characteristics of the concrete event, the characteristics of the work, the characteristics of the workplace, and how the trust relationship with the employer is damaged.

Duty of loyalty can show itself positively and negatively in business relationships. The employee is under the obligation to do some behaviors and not do some behaviors by this debt.

This obligation of loyalty to the employee includes negative acts such as protecting the legally legitimate interests of the employer and the workplace, avoiding behaviors that may harm the employer in economic, commercial, or professional terms. At the same time, there is an obligation to act actively, such as taking preventive measures in terms of an event that may harm the employer to protect the interests of the employer. In this context, it is seen that the duty of loyalty is a comprehensive liability without concrete limits. The employee's obligation of loyalty will either arise from the law or be determined by contract. However, since it is impossible to determine the duty of loyalty completely, professional or local customs and traditions may be taken into consideration in cases where there is no such provision in the law or contract.

As stated in the beginning, the duty of loyalty has some sub-obligations in itself. These are secrecy, non-competition, delivery, and debt of accountability. It is beneficial to separately consider the scope of the duty of confidentiality which is often confused with the duty of non-competition.

2. OBLIGATION OF CONFIDENTIALITY

In the most general definition, the obligation of confidentiality includes the obligation of the employee not to disclose to third parties the information that must be kept and related to the employer's job or business.

In the 4^th paragraph of article 396 of the TCO "The worker may not use any information learned during doing service, especially including secrets of production and business, on his behalf nor disclose to any third parties. He is obliged to keep secret after the termination of service related to the extent necessary to protect legitimate interests of the employer" it is clearly understood from the provision that the obligation of confidentiality is an ongoing obligation both during the duration of the business relationship and after the termination of the business relationship.

• General Obligation of Confidentiality

The concept of "business secret", which is the subject of the obligation of confidentiality, has a wider content than professional secret and trade secret concepts. The business secret is any information about the work and the workplace, unknown to third parties, not publicly available and not publicized, but known to those working at the workplace, that the employer does not want to be known by others, and has a legitimate interest in keeping it hidden. Sometimes employers can also sign a separate "confidentiality agreement" with the workers and decide in advance the secrets to being kept. The framework of the obligation of confidentiality specified in paragraph 4 of Article 396 of the TCO is drawn with the existence of the legitimate interests of the employer. Rightful interests, on the other hand, vary according to the special nature of the business relationship and the values ​​of the working life. However, it would be wrong to say that the employee has a duty of secrecy in every case where there is a justified interest. Because, within the framework of the principle of proportionality, it should be accepted that the employee is no longer obliged to comply with the obligation of secrecy if he has a higher or equal interest against the rightful interest of the employer.

It should be stated that the scope of the obligation of confidentiality includes not only production secrets but also raw material supply, sales and marketing, advertising strategy, human resources policy, the economic structure of the enterprise. However, it should be emphasized that for information to be accepted as an obligation of confidentiality, the employee must be aware that the information he has is confidential. In the determination of this, factors such as the employment contract, the personality of the relevant worker, his position in the enterprise, his education, and the size of the activity in the workplace, and the wage of the worker are taken as a basis. Besides, if the employee is obliged to reveal a secret that he is obliged to keep to the public authorities, the obligation of secrecy will no longer be mentioned.

• The Obligation of Confidentiality of Employee During the Business Relationship

The obligation of confidentiality regulated in the law and employment contracts is mainly for the continuation of the business relationship. Therefore, without requiring a separate agreement between the parties, the obligation of confidentiality will continue to exist within the scope of the nature of the business relationship and the duty of loyalty, for the reasons explained above.

• The Obligation of Confidentiality of Employee After Termination of Business Relationship

The most important issue is how to determine the scope of the employee's obligation of confidentiality and how long it will continue after the termination of the business relationship. It is seen that there is no clear regulation on this subject in Turkish Law, and most of the time, disputes are tried to be resolved within the scope of the prohibition of non-competition.

However, in a decision of the Court of Cassation on the subject, "The employee is obliged to keep secrets after the termination of the service related to the extent necessary for the protection of the rightful interests of the employer... According to the contents of the file, a contract regarding the prohibition of competition has not been signed between the parties for the period after the termination of the employment contract. In the concrete dispute, the plaintiff employer requests the collection of the material damage with the claim that the invention produced in the defendant himself, contrary to the obligation of secrecy, was also produced by the employer he worked for. Here, it is based on the violation of the obligation of secrecy, which is the sub-element of the duty of loyalty, rather than contravening the prohibition of competition. And there is a claim for compensation arising from the use of the invention in the work elsewhere due to this violation." Court emphasized that the obligation will continue with the termination of the business relationship, and also revealed the differences with the obligation of non-competition.

According to the doctrine, except for obvious exceptions arising from the legislation, the former employee has to keep the business secrets he learned after the business relationship but only where the parties have explicitly agreed on this issue or are clearly against the rule of good faith.

According to the doctrine, except for obvious exceptions arising from the legislation, the former employee has to keep the business secrets he learned after the business relationship but only where the parties have explicitly agreed on this issue or are clearly against the rule of good faith. In such cases, disclosure of business secrets may result in torts (TCO 49) or unfair competition (TTC 56) situations. However, using the skills that the employee has learned in his previous job with his effort will not mean a violation of the duty of secrecy. At this point, it is accepted that experience-based knowledge becomes a part of the employee by becoming personal.

Finally, it can be determined whether the liability will continue to exist or not according to the way the business relationship ends. Accordingly, it can be said that the employee's obligation of confidentiality will continue in an indefinite term contract terminated without complying with the notification periods. Also, in cases where the contract is terminated by the employer for just cause, the liability will continue. On the other hand, in cases where the business relationship is terminated with the agreement of the parties - in the absence of the situations explained above - the obligation of confidentiality cannot be mentioned.