T.C. JUDICIARY 9TH CIVIL CHAMBER E. 2022/6929 K. 2022/8687 T. 5.7.2022 LAWSUIT
At the end of the trial held due to the debt lawsuit between the parties, the Court of First Instance decided to dismiss the lawsuit. Upon the appeal of the decision by the plaintiff’s attorney, the Regional Court of Justice decided to reject the application on the merits. The decision of the Regional Court of Appeal was appealed by the plaintiff’s attorney; after the preliminary examination in terms of finality, duration, condition of appeal and other procedural deficiencies, it was decided to accept the petition for appeal, and the documents in the file were examined and considered accordingly:
DECISION :
I.CASE
In the petition for lawsuit, the plaintiff’s attorney stated that the defendant started to work as a medical regional manager in the client company on 15.01.2014, it was learned that the defendant sent all the contents of all internal e-mail correspondence to his colleague, who was a former employee of the Company and currently working in the out-of-court Matilek Company, whereupon the defendant’s employment contract was terminated within the scope of Article 25 of the Labour Law No. 4857. Article 25 of the Labour Law No. 4857, the defendant started to work in the competitor company in violation of the prohibition of competition written in his contract, and after leaving the job, he continued to disclose all strategic commercial information about the plaintiff Company, which is of a secret nature, and it was determined in the audit that he sent information of a trade secret nature to many companies that are competitors of the client company, and a criminal complaint was filed against the defendant in accordance with Article 239 of the Turkish Criminal Code No. 5237. He claimed that the defendant acted in violation of Articles 396 and 446 of the Turkish Code of Obligations No. 6098 (Law No. 6098) and Article 15 of the employment contract signed between the parties, and that the defendant’s unlawful actions caused damage to the client company, and that the client company suffered material and moral damages due to the defendant’s unlawful action, and requested the provision of pecuniary compensation and non-pecuniary damages receivables in return for the damages suffered by the client company.
II.ANSWER
In his reply petition, the defendant’s attorney stated the e-mails allegedly sent by the defendant were sent from the official account of the Company and were not sent by the defendant, even if the contrary is accepted, the information sent cannot be considered secret, the defendant does not have a written employment contract with the plaintiff Company, therefore the plaintiff Company was not informed about which information is secret, The plaintiff stated that the Company dismissed its employees en masse during this period, some of them were dismissed on the pretext of lack of performance, while many employees, such as the defendant, were dismissed by making unfair accusations, the plaintiff’s allegations were unfair and groundless and no fault could be attributed to his client, and requested the dismissal of the lawsuit.
III. FIRST INSTANCE COURT DECISION
With the decision of the Court of First Instance dated and numbered above; “…When the entire file scope is evaluated together, in the evaluation made regarding the plaintiff company’s request for financial compensation due to the loss of turnover subject to the lawsuit; although it has been determined that the defendant sent important information that can be considered trade secrets to Necla Ş., who is a former employee of the plaintiff, via e-mail, the plaintiff did not suffer any material damage due to the sharing of this information. ‘s, a former employee of the plaintiff, via electronic mail, the plaintiff has not suffered any material damage due to the sharing of this information, the difference between the targeted turnover and the actual turnover in the 4-month period in 2014 cannot be considered as a loss, and the actual turnover as of the end of 2015 is higher than the previous year, In this respect, it is not clear to what extent the targeted turnover for the above-mentioned 4-month period is a real calculation in accordance with the market conditions, and there is a doubt about whether an objective calculation has been made, even if it is accepted for a moment that a negative turnover difference has occurred, it is not possible to determine whether this difference is due to the defendant sharing the information belonging to the plaintiff company with his friend or whether it is due to market conditions, this issue cannot be proved by the plaintiff with concrete evidence, and since it is understood that the damage claim is far from objective criteria and abstract, the claim for material damages is rejected; In the evaluation made by our court for the claim for non-pecuniary damages, the defendant’s above-mentioned and accepted by our court, Although the act of sharing the commercial information belonging to the plaintiff company with his friend, a former employee, via electronic mail is a behaviour that can be accepted as a reason for termination without notice for just cause for the employer within the scope of Article 25/II-e of the Labour Law as behaviours that do not comply with integrity and loyalty, it cannot be proved how the defendant has caused moral damage to the plaintiff company due to this action, and there is no information and document reflected in the file that the commercial reputation of the company has been damaged by this action. …” and decided to dismiss the lawsuit.
APPEAL
A. Appellants
Against the above-mentioned decision of the Court of First Instance, an application of appeal was filed by the plaintiff’s counsel within due time.
B. Grounds of Appeal
In his petition of appeal, the plaintiff’s attorney stated The court’s decision to dismiss the case on the grounds that the amount of damage could not be fully determined is contrary to the material reality and the law, the inability to determine the exact amount of damage in the expert report is usual due to the complex structure of commercial life, and there is no determination that the damage did not arise in the expert report, from the electronic mail address allocated to the defendant, It is fixed with the file content and expert reports that the information regarding the internal functioning of the company, customer and trade secrets were sent, the contents of the e-mails in question are in the nature of trade secrets, the sharing of the trade secrets of the client company with the employees of the Company in competition is to the detriment of the client, the defendant who left the job, that he started to work in the non-complaint competitor company in violation of the prohibition of competition written in the contract and continued to disclose all strategic commercial information that he knew about the client company, and that the client company, whose trade secrets were disclosed, suffered moral damage and that the rejection of the claim for moral damages in this context was unlawful, The defendant’s unlawful actions have caused damage to the client company, which is also determined by the expert report, and although the amount of damage caused by the defendant in the loss of turnover could not be clearly determined when considered together with other factors, an appropriate compensation should be awarded in accordance with Article 50 of the Law No. 6098. Article 50 of the Law No. 6098, and that the decision of the Court of First Instance regarding the dismissal of the lawsuit is erroneous, and requested that the decision be cancelled and the lawsuit be accepted.
C. Justification and Conclusion
With the decision of the Regional Court of Appeal dated and numbered above, it has been decided to reject the plaintiff’s appeal in accordance with subparagraph (1) of subparagraph (b) of the first paragraph of Article 353 of the first paragraph of Article 353 of the Code of Civil Procedure No. 6100, on the grounds that there is no inconsistency in the decision to dismiss the lawsuit on the grounds that it cannot be proven that the plaintiff Company has suffered material and moral damage due to the action of the defendant employee.
V.APPEAL
A. Appellants
The plaintiff’s counsel filed an appeal against the above-mentioned decision of the Regional Court of Appeal within the time limit.
B. Grounds of Appeal
In the petition of appeal, the plaintiff’s attorney claimed that the acceptance regarding the dismissal of the case was erroneous for the reasons stated in the petition of appeal, and that the decision was made with incomplete examination without adequately examining the reasons for appeal stated in the petition of appeal, and requested the reversal of the decision of the Regional Court of Appeal.
C.Grounds
1.Dispute and Legal Characterisation
The dispute is whether the plaintiff is entitled to pecuniary and non-pecuniary damages arising from the violation of the trade secret due to the defendant’s action.
2. Relevant Law
I- Article 24 of the Turkish Civil Code No. 4271 with the sub-heading “B. Protection of personality” “II. Against attack” reads as follows
“Any person whose right of personality is unlawfully attacked may ask the judge for protection against the attackers.
Unless it is justified by the consent of the person whose right of personality has been damaged, a superior private or public interest or the exercise of the authority granted by law, every attack on personality rights is unlawful.”
II- Article 49 of the Law No. 6098 under the section titled “A. Liability” “I. In general” regulated under the section titled “Obligation Relations arising from Wrongful Acts” is as follows
“Whoever harms another person by a defective and unlawful act is liable to compensate for this damage. Even if there is no rule of law prohibiting the damaging act, the one who intentionally harms another by an immoral act is also liable to compensate for this damage.”
III- Article 51 of the Law No. 6098 with the subheading “III. Compensation” “1. Determination” is as follows
“The judge shall determine the extent and the manner of payment of compensation, taking into account the necessity of the situation and in particular the gravity of the fault.
If the compensation is ordered to be paid in the form of money, the debtor is obliged to provide security.”
3. In the decision of the General Assembly of Civil Chambers of the Court of Cassation dated 01.02.2012 and numbered 2011/687 Main, 2012/26 Decision: “Since the legal order recognises legal entities as subjects of law and endows them with personal assets such as name, honour, dignity and reputation (Article 48 of the Civil Code), it must be accepted that legal entities may also claim moral damages. In any case, non-pecuniary damage is a damage that is realised not only in the presence of sorrow, but also in the event that the personality values of the person are attacked. For this reason, both the Turkish Civil Code and the Code of Obligations (Article 49) protect the personal rights of not only natural persons but also legal entities.”
Assessment
1. According to the claims, defences and documents relied upon by the parties, the legal characterisation of the dispute and the rules of law to be applied, the circumstances of the case, the principles governing the proceedings, the rules of proof and the reasons stated in the appealed decision, the plaintiff’s objections to the appeal other than the scope of the following paragraphs are not deemed appropriate.
In the concrete case, as a result of the expert examination conducted by the Court of First Instance, it was determined that the defendant sent the information regarding the sales targets of the defendant Company, the pharmacy and product-based sales data and commercial conditions of the brand it represents, the region-based performance results of the sales team, including targets and realisations, the pharmacy and product-based sales and commercial conditions of its products, the year-end discount amount data to be given to the pharmacy, to the employee of the non-suiting Company, which is the plaintiff’s competitor, from the e-mail address allocated to him during the period he worked for the plaintiff. This issue has been accepted by the Court of First Instance with the statement that “… although it has been determined that the defendant sent important information about the company that can be considered a trade secret via e-mail, the plaintiff did not suffer any material damage due to the sharing of this information…” and the plaintiff has an objection to this acceptance.
Although the court rejected the claim for non-pecuniary damages on the grounds that the commercial reputation of the plaintiff company was not damaged and/or this situation could not be proved, the acceptance in this direction is not in accordance with the scope of the file. Because the personal rights of legal entities recognised by the legal order as legal subjects are under legal protection, and in this context, the commercial information of the plaintiff company; sharing of sales and product-based targets, pharmacy and prescription information is an attack on the plaintiff’s personal right. In this context, it is not appropriate for the Court of First Instance to evaluate the liability for moral compensation limited to the concept of damage to reputation.
Taking these material and legal facts into consideration, the court should award non-pecuniary damages for the benefit of the plaintiff in proportion to the defendant’s action and in an amount appropriate to the scope of the file, while it is erroneous to make a judgement in the written manner and required a reversal.
CONCLUSION : For the reasons explained;
1-REMOVAL of the decision of the Regional Court of First Instance regarding the rejection of the appeal against the decision of the Court of First Instance on the merits,
2-DISMISSAL of the decision of the Court of First Instance,
3- The advance appeal decision fee shall be returned to the relevant party upon request,
4-To send the file to the Court of First Instance that rendered the decision and a copy of the reversal decision to the Regional Court of Appeal that rendered the decision,
On 05.07.2022, it was unanimously decided.
