Turkish Constitutional Court Upholds the Requirement of Prior Notification as a Prerequisite to the Review of Employee Emails
Pursuant to the Law on the Protection of Competition, the Competition Board has the authority to request any kind of information it deems necessary from all public and private undertakings during an on-site inspection.
The term "all kinds of documents" in the previous version of Article 15 of the Law included correspondence in the electronic environment. The purpose of this Guideline is to explain the procedure to be applied in the processes of digital data analysis in accordance with Article 15 of the Law.
Assigned Professional Officers (Chief Competition Expert, Competition Expert and Assistant Competition Expert. - APO) are authorized to inspect information systems belonging to the undertaking such as servers, desktops / laptops, portable devices and storage devices such as CD, DVD, USB, external hard disks, backup records, and cloud services.
Portable communication devices that are found to contain data belonging to the undertaking can be examined through digital forensics tools.
Portable communication devices that are determined to be completely specific to personal use are not subject to inspection. As a result of an inspection, data considered to be evidence within the scope of the file is separated and all other data that is not seen as evidence is permanently deleted beyond retrieval.
During an inspection if an assigned APO deems it necessary; the digital data to be analyzed is partially or completely copied to separate data storage devices with digital forensic methods. The copies taken are duplicates obtained by logical and physical means ensuring that the data is not distorted.
If the relevant undertaking claims that the data collected has the characteristics of trade secrets, it will be evaluated in accordance with "Regulations on Regulating the Right to Include the File and the Protection of Trade Secrets" numbered 2010/3.
The Data copied during an on-site inspection benefits from protection under the principle of attorney-client confidentiality. Accordingly, correspondence regarding a client's right to defense between an independent lawyer (in-house lawyers are deemed to be out of the scope) and a client is deemed part of their professional relationship and benefits from protection within the scope of the principle of client confidentiality. However, correspondence on matters not directly related to the right to defense, especially that which assists in an infringement of competition, or conceals an ongoing or future infringement, cannot benefit from this protection.
In accordance with the Competition Board's decision dated 09.01.2020 and numbered 20-03 / 28-12; It was stated that correspondence made over the company GSM line can be acquired through on-site inspection. In this context, it is considered that copying correspondence regarding commercial activities over the company's GSM line meets legal conditions and does not harm privacy of private life.