Review of Corporate Emails without Employee Consent: Important Decision of the Constitutional Court

The importance of corporate business e-mail accounts is increasing especially in the face of widespread shift to remote work and the use of corporate emails to track operations.  The Constitutional Court, with its decision dated 17 September 2020, has made different determinations than previously accepted by -the High Court of Appeals regarding the review and inspection of corporate emails. This raises the question: "Can the employer inspect the content of corporate emails?".

The High Court of Appeals Evaluated Correspondences Admissible as Evidence

The issue of whether corporate e-mails can be inspected has been the topic of heated arguments over the course of several years. Some employees have undergone disciplinary proceedings and have been terminated for the content of the correspondences in their corporate emails.

The High Court of Appeals accepted that "the employer always has the authority to inspect corporate computers, e-mail addresses and the e-mails sent to these addresses" within the scope of re-employment lawsuits initiated by employees, whose employment agreements had been terminated due to the content of their corporate  emails (9th Civil Chamber of High Court of Appeals dated 13.12.2010, 2009/447 E. and 2010/37516 K.). The High Court of Appeals had stated that the employers do not need the employee’s consent to perform this inspection. In other words, in line with these precedents, it was accepted that the employers would be able to read or inspect corporate emails differently without the employee’s consent. Although cautiously practiced, this became an accepted interpretation.

New Decision of the Constitutional Court: Inspection of Corporate E-Mails without the Employee's Consent Constitute Violation of Rights

Upon the individual application made by an employee whose corporate e-mail had been inspected as part of the disciplinary proceedings, the Constitutional Court has evaluated that the inspection of the corporate email correspondence without the employee's consent constitutes a violation of rights and evidence acquired by such means could not form a basis for termination with just cause.

The employee whose corporate e-mails have been inspected without consent was terminated with just cause due to the content of the email correspondence. The employee applied to the Labor Court to request the invalidity of the termination with a just cause. The Labor Court and the High Court of Appeals ruled that the employer had a right to inspect the content of the corporate email without the consent of the employee and that the correspondence discovered satisfied the conditions for a termination with just cause. As such, the request of the employee was rejected, first by the Labour Court as the court of first instance and then the High Court of Appeals, as the appellate court.

The employee persisted and carried out an individual application to the Constitutional Court. The Constitutional Court, in its decision dated September 17,2020, has decided that the inspection of correspondences in corporate e-mails without the consent of the respective employee shall constitutes a breach of employee’s right of privacy as well as the freedom of communication and the employee always has the right to demand the protection of his personal data. The Constitutional Court further ruled thatthe employee would be entitled to non-pecuniary compensation and the Labor Court would have to conduct a retrial to remedy the violation of these rights.

Importance of the Employees’ Consent

According to the Constitutional Court rulings, if the consent of the employee is obtained for the inspection of corporate email accounts it cannot be claimed that the employer violated the rights of the employee (Constitutional Court decision dated 24.03.2016). For this reason, in the event of an inspection to be carried out on corporate e-mails and computers in the workplace, it is important to inform the employee and obtain their consent.

Impact of the Decision of Constitutional Court on Current Cases

The decisions of the Constitutional Court on the individual application are binding only in terms of the respective case the decision is rendered on. In this respect, the decisions of the Constitutional Court on individual applications shall not be universally binding on the Court of First Instance, the Regional Court of Justice and the High Court of Appeals in terms of other disputes. However, it is also clear that the courts are likely to adopt the determinations of the Constitutional Court over time and render decisions on similar basis. In any case, we can expect the respective ruling to be argued in ongoing cases.