The Constitutional Court Holds Inspection Of Employees’ Corporate E-Mails By The Employer Without Prior Notification Amounts To A Violation Of Constitutional Rights

In its decision in the E.Ü. individual application (No: 2016/13010, published in the Official Gazette dated March 14, 2020) the Constitutional Court held that the inspection of employees’ corporate e-mail correspondence without prior notification is a violation of their right to protection of personal data and the right to privacy of communication.
Full text of the judgment (in Turkish) is available here.

Background

The Applicant’s co-workers complained to their employer about the Applicant’s behavior towards them and a superior’s attitude towards the Applicant. The employer launched a disciplinary investigation, as part of which the Applicant’s corporate email correspondence was accessed and inspected. The investigation resulted in the termination of the Applicant’s employment.

The Applicant lodged an individual application at the Constitutional Court, claiming the inspection of their email correspondence was a violation of their right to protection of their personal data and their right to privacy of communication.

Assessment of the Constitutional Court

In its decision, the Constitutional Court sets out the boundaries of an employer’s authority to investigate and inspect communication devices in the context of employment-related disputes. The Court applied the principles set out in the Barbulescu v Romania case (ECHR, application no: 61496/08), which are the following:

• The employer needs to inform their employees beforehand that communication devices provided to them may be inspected and monitored.
• There have to be legitimate reasons justifying investigation.
• The investigation has to be mandatory due to compelling reasons.
• There must not be any other methods available via which the same result can be achieved.
• The intervention has to relevant to, limited with and proportional to the purpose of the investigation.

The Constitutional Court emphasized that (i) the Applicant had not been informed that their corporate e-mail could be monitored, (ii) the employer had not shown there were legitimate reasons the content of e-mail correspondence had to be accessed, (iii) the employer had accessed email correspondence with third parties, as opposed to only those of the Applicant and their superior, (iv) the employer accessed content irrelevant to the investigation and put these forward as the basis for the Applicant’s dismissal.

The Court therefore decided that the employer had violated the Applicant’s right to protection of personal data and their right to privacy of communication secured in Articles 20 and 22 of the Constitution.

Conclusion

In this decision, the Constitutional Court underlines once again how central the issues of prior notification and proportionality are to the Court’s assessment of whether audits carried out by employers violate employees’ constitutional rights.

In its previous decision in the Ömür Kara v Onursal Özbek application, which had very similar facts, the Court had held the investigation by the employer of corporate e-mails could not be a considered violation of the right to privacy of communications. That application differed from the E.Ü. application, however, as the employer in that case had notified the employee in an undertaking annexed to the employment agreement that communication devices could be monitored and investigated.

In light of the Constitutional Court’s decision, employers should notify employees before inspecting corporate e-mails, and any investigation of corporate emails should be relevant to, limited with and proportional to the purpose of the investigation. Furthermore, the employer should consider less intrusive methods before resorting to inspection of email correspondence. Otherwise, investigations conducted on employee correspondence may amount to violation of their constitutional rights.

Yiğit Kaynar, Esq.