EVALUATION OF EMPLOYEE’S SOCIAL MEDIA USE WITHIN THE SCOPE OF LABOUR RELATIONS

With the rapid development of technology, social media has become an indispensable and important part of daily life, and therefore, the use of social media by almost everyone has inevitably affected labour relations, which are an integral part of social life.

There are conflicting interests of the employee and the employer at the point of the employee’s use of social media and the supervision of this use; the employee does not want the use of social media to be supervised and restricted since his/her private and social life will not end with entering the workplace, while the employer chooses to supervise on various issues, especially on grounds such as the protection of company secrets and information. Although it is certain that employees have fundamental rights and freedoms such as the right to protection of personality, the right to privacy, the right to protection of personal data and freedom of expression, the interpretation of the limits of this freedom within the scope of the employee’s obligation of loyalty to the employer and the employer’s right to control is important in terms of the integrity of labour relations. In this context, social media posts of employees may cause the termination of the employment contract for valid reasons in some cases and in some cases even for just cause depending on the nature of the post.

In this article, the conflict and competition between the rights of the employee and the employer will be evaluated in the light of the decisions of the Constitutional Court (“Constitutional Court”), the Personal Data Protection Law No. 6698 (“Law”), the Labour Law No. 4857 (“Labour Law”), the Court of Cassation and the Personal Data Protection Board (“Board”).

1. Definition and Scope of Social Media

Social media is a set of environments and tools based on internet infrastructure and WEB 2.0 technology that enable people to interact, communicate, share, collaborate (joint project), create a community and create their own content in the context of common knowledge, feelings, interests and thoughts, and socialise. Social media tools consist of logs, microblogs, social networking sites, media sharing sites, wikis, social marking sites, podcasting and virtual worlds.

Both in the case law of the Court of Cassation and in practice, it is seen that applications such as WhatsApp, Instagram, Twitter, Facebook, TikTok, LinkedIn, YouTube are used more by employees and the messages sent and shares made through these applications are the subject of many disputes. For this reason, the concept of “social media” in this study covers the aforementioned online platforms.

2. Importance of Social Media Data in terms of Labour Relationship

The use of social media by employees raises many issues in terms of labour relations, and many information about the employee’s private or business life can be obtained by examining the social media accounts of the employee. Many important information such as how the employee spends a day when he/she does not come to work, his/her life order or preferences, the sociological structure of his/her circle of friends, his/her tendency to crime and illness can be obtained from the social media posts and liking preferences of the employee.

Employers who do not like the employee’s use of social media and their posts on these platforms, or who think that the employee’s posts exceed the limits of freedom of expression or disclose workplace secrets, may engage in behaviours amounting to mobbing against the employee. For example, the employer may force the employee, whose political views, sexual orientation, religious preferences are learnt from social media accounts, to quit the job with behaviours aimed at intimidation, prevent his/her promotion, not give a wage increase, or treat him/her differently and worse than the way he/she treats other employees. Therefore, the employee’s use of social media can directly affect the labour relationship and the related private life.

The recent termination of the employment contracts of the employees of an airline company operating in our country due to a photo post with a comment on social media is an example of how the data on social media can be used by the employer and how the employment contracts of the employees can be affected as a result of their posts on social media.

The data obtained by employers about their employees’ use of social media have various consequences in terms of the prohibition of discrimination, the principle of equality, freedom of thought and expression, the right to management, and the right to control and supervision within the scope of human resources and labour law.1 These competing rights of employees and employers are interpreted in different ways by the Court of Cassation and the Board according to the development of the concrete case, and sometimes decisions are made in favour of the employee and sometimes in favour of the employer. While making the relevant decisions, a detailed evaluation is made regarding the way the concrete event occurred, the obligations of the employee and the employer, the balancing of conflicting rights, and the related, limited and measured use of the relevant datasets by the employer for the purpose of publicisation, even if they are obtained by publicising them through social media.

3. Rights and Obligations of the Parties

Although the employer has the right to control the employees, the right to control is not regulated in the Labour Code. The right in question exists in employment contracts due to the nature of the bilateral contract and means the legally protected legitimate interest of the employer in this regard. The limits of this right are the rights of the employee, who is the other party to the labour contract. The employer’s right to control is protected by the Constitution within the scope of freedom of economic enterprise and the right to property. As a matter of fact, in order to maintain its economic existence in the commercial market, the employer must ensure that its business is good and its commercial reputation is protected.

The personal rights of the employee and the right to protect personal data constitute the limits of the employer’s right to management and supervision. For this reason, the employer is obliged to avoid the violation of personal data, not to violate the personal rights of the employee and to take all necessary measures at this point while exercising the right of management and supervision.3 Since social media is a medium where the posts related to the private life of the person are more common, the employer’s authority to control the employee consists of a narrower scope. However, just as computer and e-mail addresses may belong to the workplace, social media accounts may be created on behalf of the workplace, for the advertisement of the workplace or for the presentation of goods and services to consumers. In this case, it is accepted that the employer has the authority to supervise.4 As a matter of fact, upon the determination by the Court of Cassation that “by using the computer and e-mail addresses given to him to carry out the employer’s affairs due to his duty, he made electronic correspondence not related to the work with …, whose employment contract was previously terminated, during these correspondences, he made insulting remarks against the employer’s person and made correspondence on issues that could be considered as workplace secrets”, it was determined that the fact that insulting remarks were made to the employer by using the computer and e-mail addresses belonging to the employer was justified as per Article 25 of the Labour Code. /II-b of the Labour Code constitutes a justified reason for termination; the employer can always control the computers and e-mails allocated to the workplace and the employee’s request for notice and severance pay was rejected. (Decision of the 9th Civil Chamber of the Court of Cassation, 2009/447 E., 2010/37516 K. and dated 13.12.2010)

However, even though the Court of Cassation made the above-mentioned decision in 2009, in the current situation, with the Constitutional amendment of 2010 and the update of the right to protection of personal data, with the KVKK and the ongoing harmonisation processes, in the processing of data related to the shares of the employee exceeding the freedom of thought and expression; the deterioration of workplace peace, whether there is an attack on personal rights and the damage caused by the employer should be an evaluation criterion in determining whether the employer has a legitimate interest. In this sense, while evaluating the employee’s freedom of expression; the number of readers due to the possibility of access to the media used and whether it is open to the access of friends from the workplace should also be taken into consideration. For example, if the employee’s conversations with his/her close friend using the “DM” (Direct Message) feature on the Instagram application are intercepted as a result of unlawful computer control, the use of these data will be unlawful. In cases where the data processing activity is not proportionate, it should not be protected within the scope of the dynamics of the legitimate interest balance test unless it is at a level that constitutes a reason for compliance with the law.

Article 5 of the Code of Practice of the International Labour Organization (“ILO”) regarding the surveillance and processing of personal data of the employee information about employees should be work-related and limited, employees should be informed, the persons concerned in data processing activities should be trained about the processing and their responsibilities, personal data should not be used unlawfully, such as for the purpose of discrimination between employees, data processing policies should be established, data confidentiality should be ensured, sensitive and/or special categories of data should not be processed, health data should be processed only when permitted by the legislation, data transfer to third parties without the consent of the employee is prohibited, the employee’s right to access personal data, the data obtained as a result of electronic surveillance cannot be the sole criterion for the performance of employees, and the data cannot be used to control the behaviour of employees. Therefore, employers should show the necessary sensitivity to these issues and take all necessary measures when processing or auditing the personal data of their employees.

As a matter of fact, the Board has ruled against an employer who continues to process the personal data of an employee whose employment contract has been terminated for advertising purposes by not complying with these measures, stating that “since the photographs of the data subject have not been removed from the social media account of the data controller, the data controller has failed to ensure the appropriate level of security in accordance with Article 12/f.1 of the LPPD by unlawfully processing personal data without relying on any personal data processing conditions within the scope of Article 5 of the LPPD. Due to the fact that it is concluded that the data controller has not taken the necessary technical and administrative measures to ensure the appropriate level of security in accordance with Article 12/f.1 of the LPPD by unlawfully processing personal data without relying on any personal data processing conditions within the scope of Article 5 of the LPPD, an administrative fine shall be imposed on the data controller in accordance with Article 18/1/b of the LPPD, and in accordance with the provisions of the Regulation on Deletion, Destruction or Anonymisation of Personal Data, all data belonging to the person shall be duly deleted/destroyed, the photographs in question shall not be used in any other media and the Board shall be instructed to inform the Board about the result of these transactions.”

1. Effects of the Employee’s Use of Social Media on the Labour Contract

The employee’s use of social media may have a direct impact on the employment contract depending on the nature of this use. The fact that the employee’s social media posts or the use of the internet for private purposes may be a valid reason for the termination of the employment contract may be based on reasons arising from the employee’s behaviour and competence. As a matter of fact, in cases where the employment contract is terminated by the Court of Cassation due to the social media posts of the employee, situations that do not constitute a just cause, are not severe enough to destroy the trust between the parties, disrupt the ordinary functioning of the business, cause disharmony, and cannot reasonably be expected from the employer to carry out the employment relationship under these circumstances and conditions are accepted as valid grounds for termination pursuant to Article 18 of the Labour Law.

In this context, employees’ negative posts about the employer on social media, the employee’s behaviour in question generally causes some negativity in the workplace and the employer cannot reasonably be expected to maintain the employment relationship is considered as a valid reason for termination.

Termination of the employment contract for just cause may be considered if social media posts or the use of the internet for private purposes has exceeded the severity that would constitute grounds for termination for just cause and has caused the collapse of the basis of trust in the employment relationship and has caused a situation that can be evaluated within the framework of the reasons listed in Article 25 of the Labour Law.7 Since the evaluation is made within the scope of social media use, termination is mostly in question for morality and good faith and similar situations listed in Article 25/II of the Labour Law. In this context, using the employee’s social media accounts in a way that exceeds the scope of freedom of expression, uttering words that touch upon honour and honour against the employer and making unfounded allegations and denunciations that are offensive to dignity, sending photos and content that can be considered as sexual harassment through social media, sharing content contrary to the constitutional order and using the internet to serve private purposes may constitute just cause for termination.8 As a result, the employer may terminate the employment contract for just cause if the employee posts the above-mentioned content or spends most of his/her working hours on the internet and social media for personal purposes (cyberloafing).

Regarding the issue, the Court of Cassation stated that in the case where private use is prohibited in the workplace, the employee saved pornographic pictures on the employer’s computer, the monitoring of computer movements by third parties who are experts due to the fact that internet use leaves traces on the computer will cause the employer’s reputation in the public opinion to be damaged, and it was decided that there is a valid reason for the employer’s right to terminate for just cause even due to the violation of the rule prohibiting private use.9

The 9th Civil Chamber of the Court of Cassation held that in the concrete case, the employment contract was terminated pursuant to Article 25 of the Labour Law in accordance with the plaintiff’s statements on the social networking site and his request to leave his job with the message he sent to his manager. The Court’s decision was reversed and the lawsuit was dismissed on the grounds that the relevant message was interpreted as a resignation by the Court and its acceptance that it was not valid on the grounds that it was not signed was based on an erroneous evaluation, when the post made by the defendant and the defendant witness statements were evaluated, it was clear that the post was directed at the defendant’s workplace and that the plaintiff’s post containing insults and taunts gave the employer the right to terminate the employment contract and that the termination of the plaintiff’s employment contract was based on just cause.

For this reason, it is important for employees to be more careful and attentive about the use of social media both during working hours and outside working hours. While the employee should pay attention to the time spent on social media during work, he/she should also pay attention to the content of social media posts made during working hours and outside working hours, otherwise the employee’s employment contract may be terminated for valid or justified reasons. However, it should also be noted that if the employee expresses an opinion that can be considered within the scope of freedom of expression through social media or criticises an unethical practice in the workplace in a way that does not exceed this scope, the termination may be deemed malicious and the employee may claim bad faith compensation. As a matter of fact, the Constitutional Court and the Court of Cassation have established many jurisprudence on this issue and concluded that both valid and justified terminations by the employer are invalid.

In this respect, the Constitutional Court has determined that “the essence of the applicant’s complaints regarding the criminal case, which he did not bring before the Constitutional Court, is that his employment contract was terminated due to the lack of proper disclosure and therefore ruled that the applicant’s allegations as a whole should be examined within the scope of freedom of expression regulated under Article 26 of the Constitution. As a result of the examination, it was concluded that the applicant’s claim that the freedom of expression was violated was acceptable on the grounds that the applicant, in addition to working at the Institution as a subcontractor, was also the general chairman of KATAS-DER, which operates for subcontracted employees working at the Institution, and in this context, it should be accepted that the applicant’s duty as the chairman of the association for subcontracted employees also covers social issues as a requirement of his duty, therefore, the applicant did not use any expression in his post subject to the application that his words targeted a specific person, and that the claim that the freedom of expression was violated was acceptable, and that the freedom of expression guaranteed by Art. 26 of the Constitution and that there is legal interest in a retrial”.

On the same issue, the Court of Cassation ruled that “the employment contract was terminated without compensation, and when the freedom of expression is considered in terms of Article 10 of the European Convention on Human Rights “When freedom of expression is considered in terms of Article 10 of the European Convention on Human Rights, it will be applied not only to “news” and “thoughts” that are favourable or deemed harmless or not worthy of attention, but also to news and thoughts that are unfavourable, striking and disturbing, and that the European Convention on Human Rights is enumerated in the provision of the Labour Code, In the concrete case, the internet correspondence of the plaintiff subject to termination was made within a certain group on a social networking site, these correspondences should be evaluated within the framework of freedom of expression, although they are in the nature of severe criticism, and the termination made for this reason is invalid. 20 /f.3, invalidity of the termination and reinstatement of the plaintiff”.

Again, based on a similar dispute, the Court of Cassation stated that “it is erroneous to conclude that the plaintiff’s posts on social networking sites prior to the plaintiff’s employment at the defendant’s workplace were accepted as a reason for termination, the three separate social media posts made by the plaintiff during the period of employment within the scope of the employment contract are considered to be completely within the scope of freedom of thought and it has not been proved that the said posts caused negativity in the workplace, also; the invalidity of the termination and the reinstatement of the plaintiff on the grounds that it is erroneous to decide to reject the case with incomplete examination, while it is necessary to decide to accept the case due to the termination of the plaintiff’s employment contract not based on valid reasons”. 13 In another decision of the Court of Cassation, it was decided that “In summary, in the decision of the Local Court; the plaintiff’s sharing of his dissatisfaction with the working conditions on social media will not constitute a sufficient reason for the termination of the employment contract by the employer for just cause, as well as the acceptance of the lawsuit on the grounds that the plaintiff did not have any resignation petition duly submitted to the employer bearing his own signature”.14

When the other precedent decisions of the Court of Cassation and the case law formed in this respect are evaluated, it is seen that the freedom of expression in the social media posts of the employee is interpreted in different ways according to the development of the concrete case. In this context, considering the development of the dispute, the scope of the employee’s freedom of expression, the commercial reputation and position of the employer, sometimes a decision can be made regarding a lawful termination and sometimes an invalid termination.

1.Conclusion

With social media becoming more and more present in our lives every day, it is frequently discussed to what extent the employer can monitor and control the posts of employees who have accounts on WhatsApp, Instagram, Twitter, Facebook, TikTok, LinkedIn, YouTube applications, and whether they will be subject to justified or valid termination. Although the use of social media is accepted as a manifestation of the freedom of movement in the private life of employees, it should be taken into consideration that the posts made even outside the workplace and working hours may lead to the termination of the employment contract for justified or valid reasons. This is because some of the posts of the employees may disclose the business secrets of the company, damage the reputation of the employer or cause unrest in the workplace.

In many disputes, which have also been the subject of the decisions of the Court of Cassation and the Constitutional Court, it is seen that in evaluating whether the posts constitute a justified or valid reason for termination, the nature of the posts, the audience reached by the post and its effect on the workplace are evaluated. It should also be taken into account that the termination may be deemed to be in bad faith and the employee may claim bad faith compensation in both cases, when the employee expresses an opinion that can be considered within the scope of freedom of expression through social media and when an unethical practice in the workplace is criticised in a way that does not exceed this scope.

The use of social media by employees is of great importance for both employees and employers at the point of termination of the employment contract, and the balance between the fundamental rights and freedoms of the employee, especially the right to protection of personality, the right to privacy, the right to protection of personal data and freedom of expression, and the conflicting interests of the employer within the scope of the right to management, control and supervision should be established in an extremely sensitive manner in order to eliminate irreparable damages.