NEWSLETTER-2020-metin

435 MISCELLANEOUS proof of a case.” It is also obvious that the principles and rules regu- lated under Personal Data Protection Law numbered 6698 (“KVKK”) are taken into consideration by the courts. Indeed, in a completely different matter, in a case related to an alimony-related dispute, the Court of Cassation clearly states that WhatsApp correspondence presented as evidence should be regarded as unlawful evidence, if it has been made without the knowledge and permission of the account holder ( in other words, the data owner ). 6 We may, thus, conclude that the sanctions to be applied by the employer should not breach the rights of the employee as protected by the Constitution ( such as privacy of private life, freedom/privacy of communication ), and that the correspondence must be legally ob- tained. For instance, the correspondence obtained by the employer through a WhatsApp group of which he/she is not a member, without the consent of the members of the group; in other words, without the consent of other parties to the correspondence, will be deemed as a breach of privacy of communication, and these communications will not be taken into consideration in possible conflicts. As a result, the sanctions against the workers based on the What- sApp correspondence may be considered valid if they were obtained within the scope of the employer’s supervisory and surveillance au- thority 7 that complies with the rules and principles set forth under KVKK. However, obtaining these communications legally is insufficient to use them against employees. For the terminations to be made on the basis of WhatsApp correspondence, the statements that are incompat- ible with the rules of ethics, goodwill and courtesy should disrupt the workflow or cause negativity in the workplace, in order for the termi- nation to be deemed valid. Lastly, the termination should comply with the other rules and principles of the Labor Law regarding termination by the employer, such as taking the employee’s statement, termination being last resort, etc. 6 3rd Chamber of the Court of Cassation, E, 2016/14742, K.2017/2577, 7.3.2017. 7 Tokgöz, Yeşim : Employer’s Right to Govern and Personal Data Management, Erdem & Erdem Newsletter, September, 2017.