Turkey: Respecting The Freedom Of Expression And Right To Private Life In The Employment Context: The Analysis Of The Constitutional Court Case In Ayhan Deniz And Others

23 February 2024

by Eyup Kun and Citil Attorney Partnership

Citil Attorney Partnership

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The individual complaint case filed by Ayhan Deniz and others has been published in the Official Gazette on November 22, 2023. This case concerns the termination of employment contracts for multiple employees as a result of their social media posts. This case involves an intricate interaction between labour law, the freedom to express oneself, and the right to privacy. The Court's analysis provides a sophisticated perspective on the intersection between personal expressions on social media and employment obligations and rights.

1. Overview of the Case

The individuals in question were employed by İzmit Atık ve Artıkları Arıtma Yakma ve Değerlendirme Anonim Şirketi (İZAYDAŞ) in Turkey. The Kocaeli Metropolitan Municipality Inspection Board conducted an investigation and found that their social media posts violated the moral and goodwill rules stated in Article 25 of the Turkish Labour Law (4857). As a result, their contracts were terminated. The employees initiated legal proceedings seeking reinstatement, but their claims were initially dismissed by the Kocaeli 5th Labour Court. The Court determined that the termination was justified due to the posts violating trust and loyalty, which qualifies as a legitimate cause under the Labour Law. After the case advanced through different tiers of the legal system, encompassing the Istanbul Regional Court of Justice and the Court of Cassation, the employees initiated to file a individual complaint alleging, among others, violation of freedom of expression and right to private law.

2. Analysis by the Constitutional Court

The Constitutional Court examined whether the dismissal from employment as a result of social media posts violated the applicants' right to privacy and freedom of speech. The Court examined the content of the posts, which consisted of critical remarks directed towards political figures and policies. The Court stated that these expressions constituted a component of the applicants' personal life and fell within the scope of their entitlement to freedom of speech.

The Court assessed the substance of the posts and their influence on the work environment. It was observed that the lower courts did not sufficiently evaluate whether the posts had a negative impact on the workplace atmosphere or the employer's functioning. The Court emphasised the need to strike a balance between the employer's operational interests and the rights of the employees. It is revealed that the lower courts did not effectively establish this equilibrium, as they did not sufficiently justify how the social media posts justified termination.

The Court acknowledged that employers have the authority to enforce limitations on employees' personal lives for valid operational purposes. Nevertheless, these limitations should not excessively encroach upon fundamental rights, such as the right to express oneself. The Court determined that the termination of the employment contracts, which was result of the content shared on social media, constituted a breach of the applicants' entitlement to freedom of speech. The Court found that the lower courts had not adequately substantiated their rulings.

Overall, the Constitutional Court's ruling demonstrates a thorough examination of the overlap between labour legislation, the utilisation of social media, and basic human rights. It emphasises the significance of examining the context and content of social media posts, the requirement for a fair evaluation of both employer and employee interests, and the safeguarding of freedom of speech in the workplace. This case highlights the importance for employers to thoroughly assess the consequences of social media activity when making employment decisions. It is crucial that any measures taken by employers do not excessively violate employees' rights to privacy and freedom of speech.

3. Takeaways For Employers

Considering the ruling of the Constitutional Court and its implications, here are some recommendations for employers to take into account when formulating policies regarding the termination of employment contracts, with a focus on safeguarding freedom of expression:

Establish a policy regarding the social media: Employers should establish clear guidelines pertaining to the use of social media. The policies should clearly define the behaviours that are considered acceptable and unacceptable on social media platforms, and also make it clear how engaging in social media activity can affect one's employment status.

Strike a Balance Between Freedom of Expression, Right to Privacy and Workplace Harmony: Employers must find a ground between upholding employees' right to freely express themselves and ensuring a workplace environment that is respectful and harmonious. The policy must not prejudice personal opinions or expressions that have no direct bearing on the workplace atmosphere or the company's functioning.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.