Introduction
Freedom of expression, which constitutes a manifestation of freedom of thought, includes the freedoms to have thoughts/opinions, to access thoughts/information, and to express/disseminate thoughts/information. This freedom, which is the guarantee of the individual’s right to develop his/her material and spiritual existence, also plays a fundamental role in the democratization of society. However, this right may sometimes conflict with the employer’s right to management, especially in working life. When we look at the historical development of labor law, we see a transformation process from the understanding that the authority of the employer is/should be completely effective on the life of the employee to the understanding that the employee can exercise certain rights arising from his/her individuality. This transformation has made the distinction between private life and work life important, and as a result, it has resulted in the limitation of the employer’s management right and the prominence of the personal rights of the employee. This study examines the limits of the employee’s freedom of expression in his/her relations with the employer under Turkish law, the circumstances in which this right can be restricted and the situation in practice in the light of judicial decisions.
- Constitutional and International Bases
The scope of freedom of expression defined in Article 10 of the European Convention on Human Rights entitled “freedom of expression” as the right to hold opinions, to receive and impart news and ideas; in Article 19 of the Universal Declaration of Human Rights as the right to hold opinions and to seek, receive and impart information and ideas by any means and regardless of national borders; and in Article 26 of the Constitution entitled “Freedom of Expression and Dissemination of Thought”. Article 19 of the Universal Declaration of Human Rights regulates the right to hold opinions and to seek, receive and impart information and ideas by any means and regardless of national borders; and Article 26 of the Constitution entitled “Freedom to Express and Disseminate Opinion” regulates the freedom to express, disseminate, and receive or impart information or ideas, individually or collectively, by speech, writing, pictures or other means. These rights cover all individuals, including, of course, employees.
In contrast, unlike freedom of thought, freedom of expression is not absolute. Considering the provisions of Articles 13 and 26 of the Constitution, Article 10 of the ECHR and Article 29 of the Universal Declaration of Human Rights. 29 of the Universal Declaration of Human Rights, freedom of expression may be restricted, without prejudice to the essence of the right and provided that it is prescribed by law, on legitimate grounds such as the protection of national security, territorial integrity or public safety, the maintenance of public order and the prevention of crime, the protection of health or morals, private and family life or professional secrets prescribed by law, the prevention of the dissemination of confidential information or the guarantee of the authority and impartiality of the judicial power, in accordance with the requirements of the democratic social order and the secular Republic and the principle of proportionality.
- Freedom of Expression in Employer-Employee Relations
The right of individuals to express themselves freely for the development of their personality is also valid in the workplace where they spend most of their daily time, and the employee has the freedom to express and share/disseminate his/her thoughts as an individual in the workplace. Whether at the workplace or outside the workplace, the employee may individually or collectively express his/her opinions in the fields of science, art, politics, sports, etc., and may even express his/her opinions/criticisms regarding the employer/enterprise (Taşkent, 1981: 116; Arslan Ertürk, 2010: 241; Öktem Songu, 2014: 626; Güzel, 2016: 120; Birben, 2016: 161; Heper, 2021: 428; Özyurt, 2021: 450 et seq.; Auzero/Baugard/Dockès, 2022: 863). However, this right is not unlimited.
The employee is under a duty of loyalty to the employer as long as the employment relationship continues. The employee’s duty of loyalty manifests itself as a positive regulation in Article 396 of the TCO, which states that the employee “must act loyally in protecting the employer’s legitimate interest“. Within the scope of this duty of loyalty, the employee is obliged not to act contrary to the interests of the employer and the enterprise, and to refrain from behaviors that may harm the employer economically, commercially and professionally, and disclose its professional secrets. (Çelik/ Caniklioğlu/ Canbolat/ Özkaraca, 2021: 330 et seq.; Süzek, 2021; 360 et seq.; Eyrenci/Taşkent/Ulucan/Baskan, 2020: 133; Mollamahmutoğlu/Astarlı/Baysal, 2022: 602-603; Ekmekçi/Yiğit, 2021: 357; Okur, 2006: 24; Özyurt, 2021: 455-456).
Therefore, if the employee’s freedom of expression and the above-mentioned duty of loyalty may come into conflict and the protection of the employer’s/enterprise’s justified interest outweighs, the employee’s freedom of expression may be restricted. However, in order for the interference with the employee’s freedom of expression to be lawful, it must be convenient and necessary for the protection of the employer’s justified interest, and the restriction must not be excessive, that is, it must be proportionate (Okur, 2006: 9; Öktem Songu, 2014: 628; Ugan Çatalkaya, 2019: 371; Heper, 2021: 428).
In this context, in the “Kadri Eroğul” judgment of the Constitutional Court, the termination of the applicant’s employment contract due to his social media posts on the oppression of subcontracted workers was evaluated as a violation of freedom of expression. The Court emphasized that since the applicant was also the president of an association, he drew attention to a social issue and in this context, exaggerated expressions were within the scope of freedom of expression. (Constitutional Court, Application No: 2019/976, KT. 11/5/2022)
Again, in the “İlter Nur” decision of the Constitutional Court, the dismissal of the worker as a result of his complaint to BIMER was evaluated within the scope of Article 26 of the Constitution and was seen as an interference with freedom of expression. (Constitutional Court, Application No: 2013/6829, KT. 14/4/2016)
In a decision of the 9th Civil Chamber of the Court of Cassation dated 2005, the harsh criticism directed by the purchasing manager to the general manager was not considered as defamation and the termination of the employment contract was found invalid. This example is an important criterion in determining the scope of the right to criticize (Court of Cassation 9th HD. dated 13.01.2005, 2004/31588 E. and 2005/641 K.)
However, in another decision of the 9th Civil Chamber of the Court of Cassation, the employee’s use of harsh and insulting expressions against the manager on social media was considered a just cause for termination and it was underlined that such posts would allow the employer to terminate the employee immediately. (Court of Cassation 9th HD. 31.03.2016 dated 2015/27643 E. and 2016/7929 K.)
- Social Media and Freedom of Expression
Social media has created new challenges in employee-employer relations, especially in terms of freedom of expression. This is because the posts made by employees on their personal accounts may sometimes contain content that may damage the reputation of the employer. However, according to precedent decisions, not every such post entitles the employer to terminate the employment contract for just cause. As a matter of fact, in a decision of the 22nd Civil Chamber of the Court of Cassation, “…the person we call the production manager is literally incompetent and ignorant. If we list them, we wonder who they are, why and according to what they were chosen.” was evaluated within the scope of criticism; and it was stated that such statements would not constitute a just cause for termination within the framework of freedom of expression. (Court of Cassation 22nd HD. dated 10.12.2019, 2019/7908 E. and 2019/22799 K.)
On the other hand, posts made within the framework of union activities are also within the scope of freedom of expression. The 7th Civil Chamber of the Court of Cassation evaluated the employee’s liking of an image of a boycott call initiated by the union on his social media account within the scope of the constitutional right. (Court of Cassation 7th HD. 04.06.2015 dated 21301/11054 K.)
Finally, the 9th Civil Chamber of the Court of Cassation ruled in a decision that private correspondence on WhatsApp groups cannot be sanctioned by the employer as long as it does not disrupt the workflow (Court of Cassation 9th HD. dated 10.01.2019, 2018/10718 E. and 2019/559 K.)
Conclusion
Under Turkish law, an employee’s freedom of expression is protected by constitutional guarantees. However, this right may be restricted on legitimate grounds such as the employer’s personal rights, business interests and workplace order. Both the jurisprudence of the Constitutional Court and the Court of Cassation require a delicate balance between freedom of expression and the rights of the employer.
In recent years, social media posts have also been the subject of judicial decisions, and the field of freedom of expression of the employee has been reshaped. Each concrete case is evaluated in its own context; the employee’s efforts to seek rights, the content and method of criticism are decisive in this evaluation. In labor law practice, it is clearly seen that while protecting the rights of the employee as an individual, the legitimate interests of the employer must also be taken into consideration.
