EXTENDED SUMMARY

The change in information and communication technologies has also affected the labor law and it is seen that employers have started to monitor employees with digital tools within the scope of the organization of labor relations and management authority. It is easier and less costly for the employer to monitor the workers with technological means within the framework of the management authority, and the employer can measure the efficiency of the workers thanks to these methods, However, since the employer’s use of the aforementioned technical tools to exercise its authority to supervise and instruct the employee and to spy on the employee electronically carries the risk of violating many fundamental rights and freedoms related to the right of personality, especially the right to privacy, it is an important issue to draw the limits of the employee’s obligation to endure the supervision. Similarly, devices called “event data recorder” or “event recorder”, which allow the employer to follow the employee one-on-one outside the workplace in terms of timing, record and transmit to the employer many data including sudden brake direction change and driving speed.

The fact that electronic surveillance practices, such as surveillance with cameras, tracking the time and entrance to the workplace using biometric data, location tracking through GPS, monitoring e-mail and internet use, make it possible to access many personal data, including the health data of the worker, points to a dangerous trend. The point that electronic surveillance practices have reached has also come under the scrutiny of the European Court of Human Rights with decisions rendered on various dates, and the decisions on electronic surveillance in the employment relationship, which started with wiretapping from the 1990s onwards, have continued to diversify with examinations on camera surveillance and e-mail monitoring, and the principles for the monitoring of workers with location systems were first set forth in the Gramaxo decision. As a technical control tool, GPS or global positioning systems function to determine the location of the vehicle sending the signal by GPS receivers obtaining location and time information from the signals emitted by satellites. In practice, special GPS receivers designed for vehicles are used in addition to cell phones or computers that contain GPS systems. Many data such as whether the employees who perform their assigned work outside the workplace by means of the employer’s vehicle are using the provided work vehicle in accordance with the instructions, the route they follow, their working times, and the addresses they reach can be determined thanks to these receivers. The backpack developed by Microsoft, which contains a camera and microphone and is called a smart backpack, allows the monitoring of the worker’s emotional state as well as his/her location by instantly recording many health data such as heart rate, blood pressure and blood level, in addition to the use of GPS and navigation. The fact that these systems, which enable electronic surveillance rather than electronic control with the developing technology, have become capable of tracking many data starting from the location of the worker, including his/her behavior, and making it possible for the employer to monitor him/her continuously, including video and audio recording, is a worrying trend against the personal rights of the worker. The Court, which determined that the data obtained with the GPS system, which makes it possible to track a vehicle simultaneously and thus geographically locate the person or persons using it, would be considered as personal data and would constitute an interference with the right to privacy, made various determinations to ensure the delicate balance between the employer’s right to management and the personal rights of the employee. The Court, conducting a balancing activity based on the principles set out in the Barbulescu judgment, preferred to give preference to the interests of the employer while seeking an answer to the question “was it possible to establish a surveillance system based on less intrusive tools and measures?”, which is a reflection of the principle of “data minimization”. In the case in question, it is seen that the use of the work vehicle for private purposes is allowed, but the employee does not have the opportunity to disable the GPS receiver in the vehicle in order to protect the private area of his/her private life and 24/7 uninterrupted location tracking is possible. The fact that the Court ignored the fact that the GPS system, which allows uninterrupted tracking of the worker, does not have the ability to be disabled and did not investigate the existence of alternative tracking methods is an indication that the Court put the privacy of the worker’s private life in the second plan. Within the framework of the Portuguese personal data protection legislation, data processing is subject to the authorization of the National Data Commission and the Commission stated that location information is sensitive personal data and that it is unacceptable to use the geolocation system outside working hours, especially during the employee’s rest periods or when the vehicle is used for private purposes, and that it is necessary to develop a system that can distinguish between professional and private use of the vehicle. As stated in the dissenting opinion, we believe that it is an incomplete approach to make an assessment without taking into account commission decisions that can be incorporated into domestic law. We do not agree with the judgment as we consider that the Court, which did not exclude the existence of less intrusive methods as a subject of review, did not consider the fact that this situation was not sufficiently addressed by the judicial authorities in domestic law as a cause of violation.