New Ruling of the Constitutional Court: Criticism on Social Media cannot be Grounds for Dismissal!

How free are we on social media? How do our posts affect our professional business life? A striking decision of the Turkish Constitutional Court enlightened the answer to these questions.

The Turkish Constitutional Court, in its decision dated June 14, 2023, on the application of Ayhan Deniz and others (Case No: 2019/10975), ruled that the termination of employment contracts based on the social media posts of the employee infringed upon the right to privacy and freedom of expression guaranteed by Articles 20 and 26 of the Constitution, respectively.

In summary, in the case subject to the Constitutional Court’s decision; the applicants, employed by a company, faced the termination of their employment contracts based on their social media posts. After the Disciplinary Committee’s decisions, the applicants filed separate lawsuits seeking reinstatement. The local court ruled in favor of the employer, finding that the termination was based on just cause. However, upon the applicants’ appeal, the Court of Second Instance annulled the decision, stating that the termination was based on valid grounds rather than just cause. The subsequent appeal to the Court of Appeal was rejected, leading to the application to the Constitutional Court. The applicants contended that the termination of their employment contracts due to social media posts violated their right to privacy and freedom of expression.

The Constitutional Court considered the following key elements in its assessment:

1.    Nature of the Statements:

•    The social media posts by the applicants primarily addressed political and public issues rather than personal matters.

•    The Constitutional Court emphasized that these statements were related to public matters, rather than their employment, and should therefore be considered within the scope of freedom of expression.

2.    Freedom of Expression and Public Discourse:

•    The Constitutional Court acknowledged that the applicants’ statements did not directly concern their jobs, workplaces, or employers but contributed to public discussions.

•    It ruled that the termination of employment contracts by the employer, purportedly to protect its reputation and integrity, amounted to a restriction of the freedom of expression.

3.    Right to Privacy

•     Article 20 of the Constitution comprehensively addresses the right to privacy. The Constitutional Court, within this framework, concluded that the termination of employment contracts due to the social media posts of the applicants constituted a violation of this right. The court has emphasized that the negative obligation of the state involves refraining from exerting arbitrary interference with individuals’ private lives and the positive obligation aims to protect and guarantee the right to privacy. In this context, the court stated that the state has an obligation to protect this right.

4.    Trust Relationship and Negativity Claims:

•    The reasons provided by the labor courts for terminating the applicants’ contracts, based on a severed trust relationship and alleged negative effects on the workplace were deemed insufficiently substantiated and there was no concrete evidence that the applicants’ statements had genuinely disrupted the workplace.

The Constitutional Court concluded that the applicants’ right to privacy and freedom of expression had been violated. This decision underlines the significance of carefully observing fundamental rights and freedoms, especially in cases involving the termination of employment contracts, based on expressions related to ongoing political and social debates.

This article has been co-authored by Ergin Mizrahi, LL.M (Senior Partner, Head of Disputes) and Alara Orak (Senior Associate, Disputes).