EMPLOYER'S SOCIAL MEDIA MONITORING AUTHORITY

Entrance

With the innovations brought about by the digital age, social media has become an integral part of individuals' daily lives. Beyond being spaces for personal expression, social media platforms also influence business relationships and professional life. The employers' right to monitor their employees' social media accounts has raised a new and complex issue for modern labor law.

Social Media and Business Relationships: The Legal Framework

Social media raises two fundamental issues in terms of work relationships: firstly, the impact of employees' social media posts on job performance and workplace relationships; and secondly, the employers' authority to monitor and regulate these posts. While social media accounts are a reflection of employees' private lives, they can also be related to their behavior and attitudes in the workplace.

Summary and Significance of the Supreme Court Decision

The Supreme Court's 9th Civil Chamber, in its decision numbered 2022/7129 E. 2023/1983 K., addressed the right of employers to monitor employees' social media accounts. The decision stated that employers have the right to monitor their employees' social media posts, but emphasized that these monitoring activities must be limited in a way that does not violate personal privacy. This decision provides an important precedent regarding how social media posts should be evaluated in terms of employment relationships.

Employer's Authority to Monitor Social Media

Employers' right to monitor social media accounts stems from their obligation to maintain workplace discipline and order. However, this monitoring authority must be exercised without infringing upon employees' right to privacy. As stated in the Supreme Court's decision, employers' authority to monitor social media accounts should be limited only to situations where it is perceived as a threat to the workplace or a negative impact on work performance.

I. Scope and Limitations of the Audit

The Supreme Court ruling, while defining employers' authority to monitor social media, has provided certain criteria regarding the scope and limits of this monitoring. Employers can monitor employees' social media posts to maintain discipline and order in the workplace; however, these monitoring activities must not be excessive and must not violate personal privacy. Employers are only authorized to monitor situations that affect job performance or violate workplace rules. In this context, interference with employees' private social media posts, regardless of whether they directly affect job performance, is not permitted.

II. Privacy and Personal Rights

The Supreme Court ruling emphasized that employers must respect personal privacy rights when monitoring social media posts. Employees' social media accounts are spaces where they express their personal thoughts and feelings, and these spaces must be protected. Employers' access to employees' social media accounts should only be for workplace-related matters and within specific limits. Violation of personal privacy can lead to legal liability and damage trust in the workplace.

Relevant Legal Articles and Explanations

I. Turkish Code of Obligations (TBK) – Article 417

Article 417 of the Turkish Code of Obligations regulates the general obligations of the employer. This article specifies the employer's obligation to maintain order and discipline in the workplace

"The employer is obligated to take the necessary measures to ensure the orderly conduct of operations in the workplace and to implement the occupational health and safety measures required by the job."

This article outlines employers' obligation to maintain workplace discipline and their responsibility to take necessary measures to ensure order in the workplace. It states that employers have the right to conduct monitoring in accordance with these obligations in situations where social media posts may affect workplace order and work performance.

II. Law on the Protection of Personal Data (KVKK) – Article 4

Article 4 of the Law on the Protection of Personal Data regulates the principles of processing personal data:

“Personal data is processed in accordance with the law and principles of fairness. Necessary measures are taken to ensure that the data is accurate and up-to-date when required.”

This article ensures that the protection and processing of personal data are lawful. Employers must adhere to these principles regarding the protection and processing of personal data during the monitoring of social media accounts. The monitoring of employees' social media posts should be carried out within the framework of personal data protection principles.

III. Occupational Health and Safety Law – Article 4

Article 4 of the Occupational Health and Safety Law defines the occupational health and safety obligations of employers:

"The employer is obligated to take all necessary measures regarding occupational health and safety."

This article highlights employers' responsibilities regarding occupational health and safety. While social media posts may not have a direct impact on occupational health and safety, employers have the right, within the scope of their general obligations, to take necessary measures in situations that affect employee work performance.

The Effects of Employees' Social Media Posts on Work Relationships

The impact of employees' social media posts on work relationships is generally examined under two main headings: protecting workplace reputation and its effects on job performance.

I. Reputation and Discipline in the Workplace

Employees' social media posts can affect the reputation of a workplace. Negative posts, especially those related to the workplace, can be considered problematic by employers. A Supreme Court ruling states that employers have the right to monitor such posts; however, this monitoring must be carried out within certain limits. Employers can only monitor social media posts in cases related to the reputation of the workplace and workplace rules.

II. Job Performance and Relationships

The impact of employees' social media posts on job performance should also be considered. Social media posts can influence employees' attitudes and behaviors in the workplace. However, the evaluation and intervention regarding these effects should be limited to situations that directly affect job performance. Employers' review of social media posts in terms of their impact on job performance should be done without violating personal privacy rights.

Social Media Regulation in International Law

Internationally, there are different approaches and regulations regarding social media monitoring. In the European Union, the protection of personal data and privacy rights are regulated by the General Data Protection Regulation (GDPR). The GDPR has established strict rules on the processing and monitoring of personal data and provides a clear framework for how social media data should be processed. Employers must comply with these regulations when conducting social media monitoring.

 

9th Civil Chamber, Case No. 2019/8231 E., Decision No. 2020/532 K.

 

"Case Law Text"

COURT: LABOR COURT

The defendant's attorney requested an appeal of the decision rendered in the case between the parties, and it was determined that the appeal requests were filed within the prescribed time limit. After hearing the report prepared by the Examining Judge for the case file, the file was examined, and the necessary discussions and considerations were made:

SUPREME COURT DECISION

A) Summary of the Plaintiff's Claim:
The plaintiff's attorney summarized that their client worked continuously as the Administrative Affairs Manager at the defendant's workplace from May 18, 2009, to March 24, 2016, and that their employment contract was terminated socialin the media The plaintiff claims that their employment was terminated without compensation on the grounds that they used derogatory language towards their workplace and institution in the news and social media posts they published, and alleges that the termination was unfair, requesting a ruling that the termination be declared invalid and that their client be reinstated to their job.

B) Summary of the Defendant's Response:
The defendant's attorney summarized that the termination by the client company was based on a just and valid reason, that the plaintiff's behavior negatively affected the workplace, and that the plaintiff made statements that were demeaning to the defendant's workplace, contrary to the indivisible integrity of the country, and supporting terrorism, violence, and terrorists in the country socialmedia The defendant argued that the termination was based on justifiable grounds, citing the statements made in their social media posts, and requested that the case be dismissed.

C) Summary of the Local Court Decision:
Following the appeal filed by the defendant against the court's decision, based on the evidence gathered, which ruled that the termination was invalid and ordered the plaintiff's reinstatement, our Chamber summarized and concluded the decision as follows:
“In the specific dispute; the plaintiff claimed that the employment contract was terminated for unfair and incorrect reasons, and the defendant…” employer However, the plaintiff made statements that were derogatory towards the defendant's workplace and contrary to the indivisible integrity of the country, and that supported terrorism, violence, and terrorists in the country socialmedia He argued that the termination was justified because of the content he shared in his posts.

that "although the content of the Twitter posts in the file clearly shows that they glorify terrorism and terrorist organizations and are contrary to the indivisible integrity of the country, the plaintiff persistently claimed that these posts did not belong to him. The court decided to accept the case without conducting any investigation or gathering evidence as to whether the posts belonged to the plaintiff. Considering the content of the posts, it should be accepted that the defendant was justified in terminating the contract. For the reasons explained, while a decision should have been made after all the evidence regarding whether the posts belonged to the plaintiff was collected and, if necessary, a technical examination was conducted to fully clarify this issue, the decision was made with an incomplete examination, which is erroneous."

Following the reversal by the court, an expert report was obtained, and at the end of the trial, it was stated that "In the termination notice in question, it was determined that the plaintiff's employment contract was terminated by the defendant on the grounds that 'you used derogatory expressions towards your workplace and institution, and included expressions that are contrary to the indivisible integrity of the country and support terrorism, violence, and terrorists in our country.'" employer It appears that it was terminated by them.
Although the content of the Twitter posts in the file clearly shows that they glorify terrorism and terrorist organizations and are contrary to the indivisible integrity of the country, the plaintiff persistently claims that these posts do not belong to him.

To determine whether the posts made from the Twitter account in question belonged to the plaintiff, and on which computer and at what times they were made, an expert report was obtained on May 9, 2019. The expert report stated: "On the date the task was assigned, in the internet environment..." socialin the media The investigation revealed that no relevant publications were found, the Twitter account was closed, and an examination of the computer assigned to the plaintiff by the company at the workplace showed that the computer was formatted at the time of the plaintiff's dismissal and assigned to another employee. This formatting and assignment process was repeated multiple times. No copy of the company computer's hard drive was made, nor was the hard drive removed from the computer and kept for the lawsuit; only images reflecting the situation at that time were taken. It was determined that it was not possible to obtain the personal database logs from Twitter. Considering that the plaintiff persistently claims that these posts do not belong to him, it is concluded that the posts that led to the termination were made by the plaintiff and that the termination was justified employer The court ruled in favor of the plaintiff, accepting the case and determining the termination as invalid, ordering the reinstatement of the plaintiff, on the grounds that "the plaintiff's claims could not be proven.".
D) Appeal application:
The defendant appealed the decision.
E) Justification:
In the specific dispute at hand; the plaintiff's employment contract was terminated by the defendant employer The account was terminated by the authorities on the grounds that it made posts in favor of the separatist terrorist organization PKK on its Twitter account, and this was given as a justifiable reason.
The plaintiff's attorney stated in the lawsuit that, contrary to the allegations, no posts supporting a terrorist organization were made, or that the aforementioned posts were not made socialmedia Rather than arguing that the account did not belong to his client, the plaintiff, the defendant argued that his client, the plaintiff, socialmedia The posts relate to private life and have no connection to work socialmedia It was argued that the posts could not be used as grounds for termination. Subsequently, the plaintiff's attorney, in a reply to the defense, argued that the account in question did not belong to the plaintiff and that the posts subject to termination were not made by the plaintiff. However, it was not possible to determine whether the account belonged to the plaintiff, despite the expert examination conducted after the reversal.

Consequently, the subject of termination social media While it cannot be definitively proven that the Twitter account in question belongs to the plaintiff or that these posts were made by the plaintiff, when the statements in the aforementioned lawsuit are considered together.. employer It is reasonable for the defendant to have doubts and concerns about whether the posts in question belong to the plaintiff. It is clear that the trust relationship between the parties has been broken and undermined. In this situation, the defendant.. by the employer The case should have been dismissed on the grounds that the termination was not justified but based on a valid reason; however, its acceptance based on an unfounded justification is erroneous.
The Court's appealed decision is hereby overturned and annulled, and our Chamber, in accordance with Article 20/3 of the Labor Law No. 4857, has deemed it necessary to render the following decision.
F) Provision:
The reason is as explained above;
1. The appealed decision of the First Instance Court is hereby OVERTURNED AND ANNULLED
2. DISMISSAL OF THE CASE
3. The court fee of 54.40 TL to be collected shall be reduced by the 29.20 TL advance payment made by the plaintiff, and the remaining 25.20 TL shall be collected from the plaintiff and recorded as revenue for the treasury
4. The plaintiff's litigation costs shall remain with the plaintiff, and the defendant's litigation costs of 110.00 TL shall be collected from the plaintiff and paid to the defendant
5. The attorney's fee of 3,400.00 TL, determined according to the tariff in effect on the date of the decision, shall be collected from the plaintiff and given to the defendant
6. The appeal fee paid in advance shall be returned to the defendant upon request
7. It was unanimously decided on January 16, 2020, that the file be sent to the First Instance Court.

Conclusion and Recommendations

The Supreme Court's decision numbered 2022/7129 E. 2023/1983 K. emphasizes that employers must respect personal privacy rights when determining their social media monitoring authority. Employers may have the right to monitor their employees' social media posts; however, these monitoring activities must be limited in a way that does not violate personal privacy. Considering the impact of social media posts on workplace reputation and job performance, it is important that monitoring is carried out within certain limits.

Employers need to be careful with social media monitoring to protect employees' privacy, ensure trust in the workplace, and conduct a fair monitoring process. Further regulations and clarification regarding social media monitoring within the context of labor law could enhance legal certainty for both employers and employees.

In this context, employers seeking legal advice regarding social media monitoring and acting in accordance with international standards will be an important step both in protecting employees' personal rights and in maintaining order in the workplace. The main principles that employers should consider in social media monitoring should be respect for privacy rights, fair and transparent monitoring processes, and compliance with legal regulations.