Turkish Law Blog
Social Media and Freedom of Expression in the Workplace: What is the Current Practice in Turkey ?
Social media has tremendous impact in our lives and its use often and -somehow inevitably- extends into the workplace. Employer’s competing interest in limiting workers’ freedom of expression to avoid reputational damage or various liabilities. The tension between worker and employer interests bridges into the different section where the effectiveness of the current legal and regulatory framework in balancing these competing claims.
I. Work Related Expression on Social Media
There are numerous contexts for freedom of expression. However, it is in the area of work-related expression on social media where conflict between employers’ and workers’ interests is most pronouns.
a) Freedom of Expression as a Constitutional Right
The Constitution of Turkey guarantees the right to express and disseminate thoughts and opinions without interference by official authorities as well as the freedom of the media. It provides that no one shall be blamed or accused because of his/her thoughts and opinions. Turkey remains resolved to further align its legislation and implementation with the European Convention on Human Rights (ECHR) and the jurisprudence of the Court with a view to strengthening fundamental rights and freedoms, including freedom of expression and the media.
b) The Cases for Freedom of Expression in the Workplace in Turkey
In practice, employee taking photos during the working hours in a way to humiliate other employees and the company and to share those on social media will affect the work discipline and workflow at workplace; this does not necessitate termination with just cause, but causes termination with just valid cause. According to Supreme Court if any socially negative behavior and a socially and ethically unacceptable attitude of employee adversely affect the production and business relationship at work, this is considered a valid reason for termination. 
The obligation of loyalty of the employee towards the employer also includes the protection of the reputation of the employer, the workplace and the name and brand of the employer. For this reason, it is considered that any shares about employer and workplace in social media must be carried out with utmost care. For example; a workplace rule can be introduced in order to ensure that employees do not share their workplace emblem and / or uniform photos, and not to make any social media shares from within the workplace where workplace name and brand is visible and placement of similar obligations by employer in employment contract or disciplinary regulations is considered as a justifiable application. At the same time, employees are required to pay attention to the written posts they make on social media about their employers. The criterion here is considered not to exceed the reasonable “criticism” limit and not to undermine the employer's reputation in any way.
Supreme Court’s 9th Civil Department decision with number E. 2015/27643 – K. 2016/7929 dated 31.03.2016 states;
“plaintiff has made a social media sharing saying: “if those who cannot even build a sentence become manager, than those idiots who do not respond to a simple letter become supervisor” and “work at …… is going on in a foolish way” and it is considered that this sharing contained insult and teasing and a decision was given that this enabled the employer to terminate the contract with just reason.
Supreme Court’s 22nd Civil Department decision numbered E. 2016/16290, K. 2016/17802 dated 14.06.2016; a bank employee made the following sharing: ”Did you know that while our bank was able to pay us while many other banks were paying their employees, they paid to the government and saved themselves?” and “How many people are ashamed to answer those ask us the salary we receive? Let us count those who like this comment” and one of his colleague’s sharing: “News. As it is known, all branch managers are given a car. One of the officials from ... which is one of the rental companies ... Maybe it's a coincidence, but I don't think so. Officially, they say: “you work so hard , we do not care if you cry, and as high-level executives, we try to exploit you”, the employee made the following comment: “My friend. Your claim is completely correct When you go to www ...... com.tr, select the top management section and you will see that person’s name and picture among the executives, those who do not believe me can check”. The employee’s employment contract was terminated because of this. In the litigation, Supreme Court made the following decision: “plaintiff has made the sharing subjected to termination of employment in a specific group at social media, these correspondence are severe criticism but they should be considered as freedom of expression and therefore the termination is invalid”. It is understood that the Supreme Court made its evaluation by taking into consideration the place of sharing.
Employees are required to pay attention to social media sharing not only during working hours where they are actually at work, but also when they are not at work due to sick leave. In this context, if it is concluded that the employee is not actually sick due to social media shares he/she made during the sick leave on which the employee is supposed to be resting, it can be possible to terminate the employment contract without compensation in accordance with the presence of “contradiction of ethics and goodwill” within the scope of Article 25/II of Labor Law.
An example of this is the decision of the Supreme Court’s 9th Civil Department dated 06.07.2017 and numbered E. 2016/17532 and K. 2017/12196. According to the decision; It has been considered that the employer has terminated the employment contract due to the reasons: "... Plaintiff visited Giresun province during sick leave and shared his pictures at beach in summer attire, and this is a clear evidence that the medical report used for sick leave is contrary to facts and that the employee who notified the workplace with a sick leave going to vacation is against integrity and commitment” and therefore the termination in accordance with article 25/2 of Labor Law with just cause is a legal decision.
As it is seen, although the dimensions of the “criticism” in social media sharing are interpreted differently even in the different civil departments of Supreme Court, what is considered important is whether the commercial reputation of the employer is damaged or not.
Another issue that employees should pay attention in their social media sharing is their relations with other employees. For example, any disturbing or accusatory and romantic comments of an employee towards another employee enable the employer to terminate the employment contract.
For example, employee who commented under the social media picture of a nurse at a hospital and said “….you are very modest and pretty” had his employment contract terminated upon the complaint from nurse. In the litigation, Supreme Court considered the comment “…..you are very modest and pretty” as teasing and as the incident was learned by employer, decided that the “termination was with a valid cause”.
Nowadays, many people share their lives as well as their political views and ideas on social media. However, the nature of the sharing should remain within the legal limits of “criticism” and this is an important issue in terms of labor law.
Supreme Court has developed its implementation in which the employer can terminate the employment contract in case of any sharing that exceeds the limits of criticism. The important thing here is the occupation of the person who is sharing. The Supreme Court specifically discussed the fact that the political shares made by the people who are expected to be impartial due to their job description, may cause the termination of the employment contract.
For example, the decision of decision of the Supreme Court’s 9th Civil Department dated 27.11.2017 and numbered E. 2016/31552 K. 2017/1908; it was stated that “the person who is employed in media has made social media sharing where he insulted the President and government, which caused negativities at workplace and the continuation of employment relation has become impossible, therefore the termination is valid.”
II. How to Differentiate Boundaries between Work and Personal Lives
The notion that a worker can have freedom of expression but only “after work”, on his own time and limited to topics unrelated to work is problematic. While such appears a reasonable compromise since work-related expression carries high risks for employers and workers are otherwise free to express themselves outside work-related areas, this view is simplistic. Firstly, the boundary between work and personal life has today become increasingly indistinct: technology gives workers flexibility to work from home and the use of personal devices in the workplace has also brought workers’ personal lives into the workplace. Giving these eroding boundaries, employers who are understandably apprehensive towards worker expression on social media are likely to adopt an expansive conception of what is work-related, potentially controlling and limiting workers’ freedom of expression even in their personal lives. Additionally, even if a clear distinction between the two were possible, considering that workers spend the bulk of their days and experiences community in the workplace, it is natural and expected that work-related issues constitute part of their identity and are discussed in their private lives.
Work-related expression is not only important for its inextricable link to the personal sphere. It is deserving of protection for its intrinsic value. Firstly, the status of man as a sovereign and inviolable being demands that he has autonomy over his thoughts and expressions, this being effectively the only appropriate way to treat people with minds of their own. As such, independent of context and content, freedom of expression being an inherently human right demands protection where to do otherwise would constitute an affront to human dignity and a negation of man’s essential nature.
One of the principles established by the case law of the European Court of Human Rights is related to freedom of expression. According to this; freedom of expression constitutes one of the fundamental bases of a democratic society and one of the basic conditions for the progress of society and the development of each individual. Freedom of expression applies not only to “news“ and “opinions” which are considered to be favorable or harmless, or which are not worthy of interest, but also to news and opinions that are unfavorable, disturbing or striking. As stated in Article 10 of the Convention, there are exceptions to this freedom; however, such exceptions should be narrowly interpreted and the need for a restriction should be revealed in a convincing manner. 
Although there are various decisions in different cases and the criteria that will be determinative when evaluating the freedom of expression and the loyalty and obedience of the employee are not clearly defined, one thing is obvious: Article 10 of the European Convention on Human Rights should be evaluated when giving a decision and the issues that would be an exception to freedom should be narrowly interpreted.
 Decision of the Supreme Court’s 9th Civil Department dated 06.07.2017 and numbered E. 2016/17532 E and 2017/12196 K.
 Prof. Dr. Osman Doğru - Dr. Atilla Nalbant; European Convention on Human Rights, Description and Important Decisions, Volume:2, p.365, Nilsen and Johnsen [BD] 43