Turkish Data Protection Board Decision: Unlawful Voice Recordings in Labor Disputes

In its decision dated September 7, 2023 and numbered 2023/1548, the Turkish Personal Data Protection Board (“Board”) evaluated a complaint regarding an employer submitting voice recordings of an employee to the court, in relation to a labor dispute.

In summary, the employee (“Data Subject”) claimed that their conversation was recorded and given to their employer (“Data Controller”) by a customer and was retained and submitted to the court by the Data Controller without explicit consent. On the other hand, the Data Controller counterclaimed that they terminated the employment agreement due to the Data Subject’s behavior, as the voice recording of the Data Subject demonstrates attempt at bribery and after the Data Subject filed a lawsuit against the Data Controller with the claim that the termination was unlawful, the Data Controller submitted the voice recording to the court file as an encrypted disk, of which the password was not shared with the court.

In this regard, the Board stated that the issues regarding the Data Controller’s retention of the Data Subject’s voice recording which justifies the termination and its submission to the court file should be evaluated within the scope of the Turkish Personal Data Protection Law No. 6698 (“DPL”).

Accordingly, the Board underlined that although the Code of Civil Procedure No. 6100 prohibits the use of illegally obtained evidence in court; the unauthorized voice recordings may not be considered as a crime under the Turkish Criminal Code No. 5237 in certain cases. If the recording is made in self-defense during a sudden situation where obtaining evidence is not possible and there is no opportunity to report the incident to the authorities, it may be admissible as lawful evidence in accordance with the Court of Cassation's precedents. Moreover, in labor disputes, voice recordings may be accepted as lawful evidence if it is not possible to prove that the employer terminated the employment contract for just cause with another evidence or if there is an aim to prevent the loss of evidence. Therefore, the Board determined that the voice recording used to demonstrate the termination of the Data Subject's employment contract for just cause is admissible evidence. Additionally, the Board also stated that the voice recording was not made by the Data Controller but was kept by them due to its evidential value.

The Board further emphasized the Data Controller’s statements regarding the submission of the voice recording to the court, which sets forth that (i) the voice recording was not shared with any personnel, (ii) the voice recording was transferred to an encrypted disk and deleted from the insecure environment by taking the necessary administrative and technical measures, (iii) the voice recording was kept in an encrypted form limited to the legal retention period and lastly (iv) the voice recording was submitted to the court in an encrypted manner.

In this context, the Board decided that the Data Controller submitted the voice recording of the Data Subject to the court in line with the conditions for processing personal data regulated under the DPL, namely, “the necessity for the establishment, exercise or protection of any right”.