The Social Media Paradox: Employees’ Freedom Of Expression

15.12.2023

Introduction

Do you know someone who doesn’t share anything about daily life or social-political developments through Instagram posts and “stories”, Whatsapp “status” or Twitter and Facebook posts? We don’t. In today’s world, everyone shares their thoughts and opinions through social media, not just about daily life but also about social-political developments. This transparency can also affect the relations between the employee and the employer. This article examines the consequences of employees expressing their social and political views on social media within their employment relationships.

Freedom of Expression

According to Article 25 of the Constitution of the Republic of Turkey (“Constitution”), everyone has the right to freedom of thought and opinion. Anyone cannot be compelled to reveal his/her thoughts and opinions, for whatever reason or purpose; he or she cannot be condemned or blamed for his opinions. According to Article 26, everyone has the right to express and disseminate his/her thoughts and opinions, individually or collectively, through speech, writing, pictures, or other means.

There is no general article on how freedom of expression can be limited in the employment relationship in Labor Law No. 4857 (“İK”). In particular, in Article 25/II-b of the İK, the employee’s use of words that will harm the honor and dignity of the employer or one of their family members is considered as a reason for termination for just cause. It is possible to say that this article is a lawful restriction of freedom of expression. Additionally, according to Article 417 of the Turkish Code of Obligations No. 6089 (“TBK”), the employer is obliged to protect and respect the personality of the employee in the employer and service relationship.

As can be understood from these provisions, the provisions on freedom of expression are quite general and abstract. Therefore, it would be useful to examine the issue through examples based on the decisions of the Constitutional Court.

Jurisprudence

The task of the Constitutional Court in this regard is to investigate whether the judiciary has struck a fair balance between the employee’s freedom of expression and the interests of the employer after the termination of the employment contract between the employee and the employer. In other words, the Constitutional Court examines how the labor courts and higher courts balance the freedom of expression of the workers with the interests of the employer.

The Constitutional Court finds that an infinite number of thoughts are shared every day through social media, which has become a part of our lives, regardless of whether they are unpopular or controversial. According to the Constitutional Court, the fact that an idea does not comply with social norms is disturbing or reprehensible and should not prevent the person who shared it from exercising his/her freedom of expression. Accordingly, freedom of expression applies not only to information or ideas that are accepted or harmless or indifferent but also to those that are offensive, shocking, or disturbing. The Constitutional Court applies the same principles to its decisions on employees’ freedom of expression.

The Constitutional Court – Kasim Çiftçi and Others – Does social media posts negatively impact organizational harmony in the workplace?

The Constitutional Court examined whether the termination of the employment contracts of 17 workers working for the contractor company affiliated with VEDAŞ in Van Municipality violated the freedom of expression in this decision. According to the decision, the basis for the employer’s termination of employment contracts is the result of the investigation conducted by the Van Governorship State of Emergency Office on whether the employees have contact/affiliation with terrorist organizations. The courts of first instance and appeal have accepted that the posts and likes made by the workers on social media target the indivisible integrity of the country, praise terrorism, crime, and criminals, and disrupt labor peace. There is no detailed information about the posts in the decision.

First of all, the Constitutional Court underlined that for an employee’s behavior to be considered a valid reason for termination of the employment contract, it must negatively impact organizational harmony in the workplace. Despite this, it was stated that the courts did not assess that these posts significantly adversely affected the performance of work in the workplace. According to the Constitutional Court, what needs to be done is to investigate which contractual obligation is concretely imposed on the employee, which concrete contractual obligation the employee violates with which behavior, and what are the damaged business interests of the employer. Since all these were not done, it was concluded that the freedom of expression of the workers was violated.

The Constitutional Court – Yüksel Beki – Are the social media posts related to the workplace or the employer? Do private sector employees have an obligation of loyalty to the administration or government?

The Constitutional Court examined the termination of the employment contract of the person who worked as a vatman in Metro Istanbul Joint Stock Company, a subsidiary of Istanbul Municipality, for just cause per Article 25/II of the HR due to the post he shared on his social media account, “They will pour sperm from the Yumurtalık oil pipeline so that you can have 3 children” in this decision. The employer stated that the employee’s social media post did not comply with the rules of morality and good faith, exceeded the limits of criticism, and carried insulting statements, and the courts stated the employer’s right by emphasizing that there may be negativities in the workplace due to these posts.

First of all, it should be noted that the Constitutional Court evaluated the worker in question like any other private sector employee. The Constitutional Court found that there was no evidence that the employee made the said posts during working hours or with work tools in a way that would disrupt the fulfillment of his responsibilities. According to the Constitutional Court, there is no information that the employee’s social media posts have anything to do with the workplace or his employer. The Constitutional Court stated that this post, which is a criticism of the political policy carried out to increase the population of the country, should benefit from freedom of expression, even if it is considered unrefined, offensive, or insensitive. Also, the Court stressed that private sector employees are not typically subject to the same level of loyalty expectations as civil servants.

The Constitutional Court referenced similar rulings, including the İdil Alakuş Dere case involving an editor at Sabah newspaper and the Orhan Özdemir case regarding a bank branch manager’s social media post. Both cases identified violations based on principles similar to the one at hand.

The Constitutional Court – Ayhan Güler- Like Button

This decision of the Constitutional Court is related to the “like” button used in social media accounts. A worker working in a private security company “liked” two separate posts on Facebook one day after the coup attempt on 15/7/2016 and therefore his employment contract was terminated for just cause. The Constitutional Court reiterated the principles and principles in the above-mentioned decisions and made a special assessment regarding the function of the “like” button in this decision.

The Constitutional Court held that clicking ‘like’ on a post does not signify an intention to actively spread its content, but only an interest in it. Accordingly, along with the reasons in other decisions, it was decided that the termination of the employee’s employment contract violated his freedom of expression.

The Constitutional Court – Ayhan Deniz and Others – freedom of expression and public criticism

In this decision of the Constitutional Court, the employment contracts of 7 people working at İZAYDAŞ, a subsidiary of the Kocaeli Metropolitan Municipality, were terminated due to their social media posts against the government and government officials. The Constitutional Court examined whether the right to respect private life and freedom of expression were violated.

The workers were criticizing politicians, the government, the administrators who exercise public power, and their political and administrative behavior in this case. According to the Constitutional Court, the issues addressed in social media posts are related to public interests. In this respect, it is quite appropriate for workers, who are also voters and citizens, to follow these developments closely. Workers exercised their right to express their views on these developments and freedom of expression on the internet through social media platforms, one of the most common and popular tools. Accordingly, along with the reasons stated in other decisions, it was decided that the termination of the employment contract of the workers violated the right to respect for private life and freedom of expression.

Conclusion

The employment contracts of people who share their views on social and political developments on social media platforms or who like the posts can only be terminated under specific circumstances. In line with the case law of the Constitutional Court, one of the following situations must be proven:
- Negatively impacts the work environment and disrupts organizational peace.
- Directly related to the employer or workplace, causing potential harm to the employer’s reputation or interests.
- Be made during working hours or using work tools, or occur at the workplace and significantly interfere with the employee’s ability to fulfill their duties.

It should not be forgotten that private sector employees or employees of public enterprises who are subject to the Labor Law No. 4857 are not civil servants who must establish a certain level of trust and loyalty relationship with the administration. In other words, such loyalty is not expected from private sector employees.

Employees should be able to exercise their freedom of expression on social and political issues as citizens and voters at the same time.