As a result of technological devices and the internet finding a place in a large area of our lives, the number of social media accounts belonging to popular applications created worldwide has reached 4.9 billion as of 2023. Although the increase in the number of users continues rapidly, it becomes inevitable in today’s conditions that social media applications, which have a great impact and contribution to daily life, social life and career planning, take their place in the legal world.

In particular, whether the messages sent via social media applications and the data obtained with technological devices will be considered as evidence in the event of a possible lawsuit, whether they will constitute a crime and their legal nature raise a question mark in the minds, and if the necessary conditions are not met in the lawsuit processes, it causes victimisation and loss of rights.

In this information note, the evidence obtained through social media platforms and technological devices will be examined within the framework of current case law and doctrinal opinions.

First of all, personal data, which is protected under the Constitution and Law No. 6698 on the Protection of Personal Data (“KVKK”), as well as other legislation, includes all kinds of information that make the identity of a real person certain or identifiable. While obtaining these data or using them as evidence, it should be ensured that no constitutional, legal or personal rights are violated and no data breach has occurred. If the dispute process is initiated, the legal nature of the evidence submitted to the court and whether it meets certain conditions must be meticulously examined in accordance with the provision in paragraph 2 of Article 189 of the Code of Civil Procedure No. 6100 (“CCP”): “Evidence obtained unlawfully cannot be taken into account by the court in proving a fact.”

The first condition for the evidence to be accepted in accordance with the law is that the person who wants to present the evidence must be a party to the relevant communication. A recent decision of the Regional Court of Appeal sets a precedent on the subject. “In the concrete case, the employment contract was terminated by the defendant employer on the grounds that the plaintiff insulted some employees and used … expressions in the content of the messages sent to his spouse. As can be seen, the reason for the termination is the content of the messages sent by the plaintiff to his spouse via Whatsapp programme. The fact that the private correspondence between the plaintiff employee and his spouse was transmitted to the employer without his consent and knowledge violates the confidentiality of private life. In this case, the termination based on unlawful evidence is not justified or valid.”

However, if the party whose right is violated consents to the submission of the evidence obtained unlawfully, it becomes possible for the court to take this evidence into consideration. The General Assembly of Civil Chambers[2] confirms this point with the doctrinal opinion in one of its decisions. “According to Prof.Dr.Pekcanıtez, tape recordings, photographs, stolen or confiscated love letters obtained as a result of violation of personal rights, private life and confidentiality cannot be considered as evidence. The evaluation of the evidence obtained unlawfully should be decided on the basis of the rule of honesty, which is also valid in the Civil Procedural Law, and in each concrete case, an evaluation should be made according to the characteristics of that case. In this regard, the compatibility of the purpose between the violated legal provision and the interest to be proved should also be taken as a basis. On the other hand, not all evidence seized secretly should be characterised as unlawful evidence. For example, in a telephone conversation, the statements made as a result of hearing what the parties said thanks to the sound amplifier or a second listening device on the phone and the testimony on this issue should be valid. If the person whose right is violated permits the use of the evidence obtained as a result of the violation of the right of personality, this evidence may be used by the court. (Pekcanıtez/Atalay/Özekes, Medeni Usul Hukuku, 2nd Edition, Ankara 2001/s.390 et seq.).”

This evidence is accepted as lawful evidence if the messages transmitted to the chat groups created within the company, which are especially on the agenda in employment cases, are submitted by each member of the group, but when it is used in favour of third parties, violation of personal data comes to the fore. The opinion of the Court of Cassation in a decision of the Regional Court of Appeal also supports this point. “According to the decision of the 9th Civil Chamber of the Court of Cassation numbered 2018/10718E-2019/559 K; “WhatsApp system is a system that carries out communication via telephone and internet in the internet environment. Here, the person communicates with people, as well as establishing groups and communicating within the group. However, this system is protected within itself and closed to third parties. Therefore, it is not prohibited for workers to establish a group and communicate here as long as it does not disrupt the workflow and does not affect their work. In this context, it is essential to protect the communication of the workers here as personal data. ” In the concrete dispute, since it is understood that WhatsApp conversations are confidential personal data, the conversations made by the plaintiff about the workplace chief K1 can be seen by those who are members of the group, the intra-group correspondence was obtained from witness K3 as a result of pressure, and it is understood that it cannot be proved that the correspondence caused negativity in the workplace, the termination of the employment contract based solely on these correspondence is unfair, and it was wrong to decide to reject the lawsuit while it should be decided to accept it.”

In addition to this decision, a doctrinal opinion emphasises that messages within the group should be subject to confidentiality provisions. “The Court of Cassation correctly accepts in disputes regarding labour law that instant messaging groups (such as WhatsApp) are protected against the employer, that this system is closed to third parties who are not in the group, that it is a system that is protected in itself, that the communications of the workers here are essential to be protected as confidential personal data, and therefore cannot be the basis for justified termination. In fact, rather than whether the acquisition of the communication contents in question is unlawful or not, it is important whether the use of these contents (for the notice of termination and as evidence thereof) constitutes a violation of rights or not. The fact that there is no illegality in the acquisition of the evidence does not always make its use possible. For this reason, although it is not possible to evaluate the contents of WhatsApp correspondence as evidence, the testimony of other workers who are also parties to the correspondence or conversation is possible regarding the claimant worker’s allegation that the claimant worker made verbal or written statements to other workers in violation of the employment contract. The prohibition of evidence regarding correspondence does not cover such testimony. In the event that persons who are not parties to the correspondence obtain information by learning the correspondence without the consent of the claimant, the testimony of these persons is covered by the prohibition of evidence due to the remote effect of the prohibition of evidence.”

Another important point is that the person should not be subjected to any fraud during the obtaining of the evidence. In other words, correspondence made by creating a fake account, camera footage and audio recordings taken in a planned manner when the person has or does not have the power of appeal, aim to deceive the person to obtain evidence, and the evidence obtained in this way is not considered within the scope of lawful evidence.

Article 17 of the LPPD titled “Offences Committed Against Personal Data” refers to the Turkish Penal Code No. 5237 (“TPC”). Article 134 of the TPC states that “Anyone who violates the confidentiality of the private life of individuals shall be sentenced to imprisonment from one year to three years. If the confidentiality is violated by recording images or sounds, the penalty to be imposed is increased by one times. Anyone who unlawfully discloses images or sounds related to the private life of persons shall be sentenced to imprisonment from two to five years. The same penalty shall also be imposed in the event that these disclosed data are published through the press and broadcasting.” and Article 135: “Anyone who illegally records personal data shall be sentenced to imprisonment from one to three years. If the personal data is related to the political, philosophical or religious opinions, racial origins, unlawful moral tendencies, sexual life, health status or trade union affiliations of the persons, the penalty to be imposed pursuant to the first paragraph shall be increased by half.”, the evidence obtained in a way that violates personal data and the privacy of private life is included within the scope of the offence.

In addition, in the event that the evidence is obtained through a hacker or spy programme in order to obtain the evidence or to delete/change the evidence, or if the evidence is obtained directly through the seizure of a personal account, the information crime discussed in Articles 243 and 244 of the TPC comes to the agenda. According to these articles, anyone who unlawfully enters or remains in the whole or part of an information system is sentenced to imprisonment up to one year or a judicial fine, and anyone who corrupts, destroys, modifies or makes inaccessible the data in an information system, places data in the system, or sends the existing data to another place is sentenced to imprisonment from six months to three years.

Even if the content of the evidence proves the case, if it was obtained illegally, it is not taken into consideration by the court, but a separate criminal process is carried out due to the criminal offence of the way the evidence was obtained. In one of its judgements, the Constitutional Court ruled that “…the defendant’s conversation with the participant is unlawful evidence and cannot be taken as a basis for the judgement because it was secretly recorded on tape by the participant…”.

The exception to this condition arises in divorce cases, especially in cases of adultery. The Court of Cassation keeps the rights regarding the right to privacy flexible between married couples. In one of its decisions, the Court of Cassation did not consider it a crime for a person who suspects his/her spouse of adultery to install a spy programme, listen to and record the conversations and use them in the divorce case. Another exception comes to the fore especially in criminal cases. If it is not possible for the party who is obliged to prove the case with legal evidence, or if the obtaining and presentation of the evidence to the court resulted from an instantaneous event, the court evaluates this evidence.

In one of the decisions of the Criminal General Assembly of the Court of Cassation, it was ruled as follows: “It is not possible to evaluate the recordings obtained by recording the conversations he had with the participants in the same environment and on the phone by recording them on his mobile phone within the scope of Article 135 of the Code of Criminal Procedure No. 5271, and in this context, it is not possible to consider it unlawful on the grounds that there is no judge’s decision, and it is necessary to accept that the evidence, which cannot be obtained again, was collected in order to be presented to the competent authorities regarding the crime allegedly committed against him by the defendants by asking for a bribe, and therefore it is in accordance with the law.”

In summary; the legal nature of the evidence and whether it can be used in a case or not is a grey area, especially because it depends on the type of case, the parties’ relationship with the correspondence in question, and the parties’ relations with each other. For this reason, before submitting evidence to the case, the mentioned issues should be carefully examined and the relevant evidence should be supported by the decisions of the Court of Cassation regarding the current situation.