NEWSLETTER-2020-metin

434 NEWSLETTER 2020 employment contracts were terminated due to the profanity used in the messages of an employee in a WhatsApp group conversation, and the mentioned employee filed a lawsuit, accordingly. As a result of the trial of the court, the decision of acceptance of the case was made on the grounds that the plaintiff did not refer to a specific person, and that the WhatsApp group was a closed group. However, the Court of Cas- sation decided that the case should be dismissed. It was pointed out in the reasons of the relevant decision 4 that the profane messages of the plaintiff were proven, the plaintiff’s behavior caused negative effect for conduct of the work in the workplace, and that the termination was valid. In a decision 5 made in 2018, the Court of Cassation determined that the wording and content of the messages of the plaintiff in a What- sApp group were incompatible with the employment relationship, and the plaintiff caused adversity in the workplace through these behav- iors; thus, the court ruled that the termination made on the basis of this correspondence was valid. Evaluation and Assessment When the justifications of the Court of Cassation’s recent deci- sions are examined, it is clear that the court found that the WhatsApp system is protected, in itself, and is closed to third parties. Further- more, in the decisions, it is emphasized that employees cannot be banned from creating a group and communicating, provided that these communications do not disrupt their workflow and do not affect their work. Pursuant to the Court of Cassation, these communications must also be protected as personal data, and these messages may not be recognized before the court in cases where it is not proven as to how they were obtained. It can be said that this view is a reflection of the general principles of law regulated in Article 38/6 of the Constitution of Republic of Turkey, stating that “Findings obtained in violation of the law cannot be considered as evidence” and, in Article 189/2 of Code of Civil Procedure numbered 6100, stating that “Evidence obtained unlawfully cannot be taken into account by the court in the 4 9th Chamber of the Court of Cassation, E, 2019/7066, K. 2020/357, 15.1.2020. 5 9th Chamber of the Court of Cassation, E, 2017/14638, K. 2018/2329, 12.2.2018.