A conversation held in a WhatsApp group established at the workplace one day lands on management’s desk as a screenshot. Subsequently, a defense is requested or a termination notice is issued directly. Is this screenshot considered evidence in court; if so, under what conditions?
Short answer
Electronic data is a document according to Article 199 of the CCP; however, evidence obtained unlawfully according to Article 189/2 of the CCP cannot be taken into account in proof. The Court of Cassation defines WhatsApp correspondence as personal data and communication closed to third parties; it considers termination based on correspondence whose procurement method cannot be understood as unjustified. In contrast, if a party to the correspondence forwards an insult directed at them to the employer, it is evaluated differently, and in this case, the termination can be considered justified. For the employee, the defense involves disputing the source, integrity, and context of the screenshot.
Table of Contents
- Legislation: CCP Art. 189/2 and Art. 199
- Correspondence of unknown origin: The Court of Cassation’s criterion
- Does the situation change if a party to the correspondence provides it?
- Is it forbidden to create a group and talk in the group?
- Employee’s defense strategy: three objections
- Why expert lawyer support?
- Frequently asked questions
- Result
1. Legislation: CCP Art. 189/2 and Art. 199
CCP Art. 189/2
“Evidence obtained unlawfully cannot be taken into consideration by the court in proving a fact.”
CCP Art. 199
“Data such as written or printed texts, deeds, drawings, plans, sketches, photographs, films, video or audio recordings, as well as data in electronic environments and similar information carriers suitable for proving the facts in dispute, are considered documents according to this Law.”
When these two provisions are read together, the conclusion is this: A screenshot is technically a document, however, if obtained unlawfully, it cannot be taken as a basis for a judgment. Therefore, the discussion revolves around the source rather than the content.
2. Correspondence with Undetermined Source: The Supreme Court’s Criterion
Supreme Court, 9th Civil Chamber, 10.01.2019, Application No. 2018/10718, Decision No. 2019/559
Conclusion: The rejection of the severance and notice pay claims was found to be erroneous.
Recalling the principle that the WhatsApp system is “protected within itself and closed to third parties” and that “its protection as personal data is essential”: “In the concrete dispute, since WhatsApp conversations constitute personal data with confidentiality, the termination of the employment contract solely based on these correspondences, the procurement method of which cannot be understood, is unlawful, and therefore, rejecting the severance and notice pay claims instead of accepting them is erroneous.”
Principle derived from the decision: WhatsApp correspondence constitutes personal data; termination based on correspondence whose source cannot be explained is unjust.
How is it used in practice?: The first sentence of the defense should be: “By whom, from which device, and on what date was this image obtained?”
Supreme Court 9th Civil Chamber, 02.10.2023, Docket No. 2023/15698, Decision No. 2023/13552
The Court, by determining that “conversations reflected on the social media tool named Whatsapp are of the nature of personal data containing privacy,” concluded that “it is not possible to consider these communications, whose acquisition method cannot be understood, solely as evidence.”
Principle derived from the decision: Correspondence of uncertain origin cannot be used as evidence on its own.
How is it used in practice?: Lesson for the employer: The grounds for termination must also be supported by evidence independent of the message (witnesses, workplace records, reports).
Allocate an hour before presenting your defense
Objections regarding the source and integrity of the image are prepared. Your defense text is written in a way that is consistent with any future lawsuit. A timeline for the process to be followed if termination occurs is prepared.
3. Does the Situation Change if a Party to the Correspondence Provides It?
This is the most frequently confused point in practice. A correspondence secretly obtained by a third party is not the same as a party to the correspondence forwarding a message addressed to them to the employer.
Supreme Court of Appeals, 9th Civil Chamber, 28.11.2018, File No. 2018/2785, Decision No. 2018/21795
Conclusion: The termination was deemed based on just cause.
“…the event that caused the termination of the employment contract was the plaintiff’s insulting another employee of the defendant, … via phone message, and it is established that this situation constitutes a just cause for termination for the employer according to Article 25/II-d of Labor Law No. 4857.” — “Since the words uttered by the plaintiff constituted provocation, the termination carried out by the employer is based on just cause.”
Principle derived from the decision: The statement of the employee who reported the insult directed at them to the employer and the related message can be taken as a basis in the assessment of just cause for termination due to provocation.
How is it used in practice?: In this case, the employee’s defense of “unlawful evidence” does not gain strength; the defense should rather be based on the context, target, and severity of the provocation in the message. The employer, on the other hand, should pay attention to the six-working-day period.
| Party submitting the evidence | Assessment |
|---|---|
| Recipient of the correspondence (employee receiving the message) | The claim of unlawfulness weakens as they presented their own communication; content is debatable |
| A third employee who is a member of the group | Transfer of in-group communication to third parties raises discussion regarding confidentiality; it is evaluated according to the specific case |
| Person not included in the group or with an uncertain source | The argument for unlawfully obtained evidence is strong; the Supreme Court deemed terminations based on these communications unfair |
| Employer’s acquisition through device monitoring | Subject to prior notification and proportionality review |
4. Is it Forbidden to Form a Group and Talk in a Group?
Supreme Court 9th Civil Chamber, 01.06.2017, E. 2016/14205, K. 2017/9526
“However, this system is protected within itself and closed to third parties. Therefore, it is not forbidden for employees to form a group and communicate within it, as long as it does not disrupt the workflow and affect their work.” — “Employees’ emails at the workplace and their notifications to the employer regarding labor rights are democratic demands, and it is not appropriate to make such peaceful behaviors a reason for termination.”
Principle derived from the decision: Employees forming groups among themselves is not forbidden; peaceful demands concerning labor rights cannot be a reason for termination.
How to use in practice?: This decision should be highlighted in terminations made due to groups where wages, overtime, working conditions, or union matters are discussed.
Note: The spelling errors in the quote are as in the source.
Constitutional Court, App. No: 2019/33833, 20.07.2023
“According to the ruling, an act can only be considered a valid reason if it leads to negative consequences in the workplace. If the employee’s conduct does not have a negative impact on the production and employment relationship process in the workplace, it is not possible to cite such conduct as a valid reason for the termination of the employment contract.”
Principle derived from the decision: For an in-group sharing to be considered a valid reason, it must lead to a concrete negative impact in the workplace; the composition of the group and the time, medium, and place of sharing are taken into account.
How to use in practice?: These criteria should be emphasized in shares within closed groups consisting of a limited number of people and used outside working hours.
Note: Since the outcome of the decision is not explicitly stated in the sources, the full text should be checked.
5. Employee’s Defense Strategy: Three Objections
| Objection | How is it raised? |
|---|---|
| 1. Source objection | It is requested that it be explained by whom, with which device, and on what date the image was obtained; if it cannot be explained, an objection of unlawfully obtained evidence is made (CCP art. 189/2). |
| 2. Integrity objection | Against the possibility of the image being fake or manipulated, the entire correspondence is requested to be submitted, and if necessary, an expert examination of the device is requested. |
| 3. Context and weight objection | The message’s target, tone, the entirety of the conversation, and whether it caused a concrete negative impact in the workplace are discussed. |
These three objections should be structured in the same order in the defense petition and during the mediation phase. If the defense is written at an early stage by delving into the content and accepting the message, it may weaken the source objection later on.
The first defense you write determines the framework of your case
Your defense text is prepared to protect source, integrity, and context objections. If termination occurs, the mediation and litigation process is conducted through the same file. For the employer, evidence and procedural review are conducted before termination.
Why Expert Legal Assistance? The 2M Law Firm Approach
Cases where employment contracts are terminated citing WhatsApp correspondence are cases where labor law, personal data protection law, and the law of evidence intersect. Due to the short deadlines and fragile nature of evidence, the steps taken in the early days determine the outcome. Our firm’s working method in these types of cases is as follows:
| Stage | 2M Law’s Action |
|---|---|
| Evidence analysis | The source, date integrity, and legal compliance of the screenshot are examined. |
| Defense statement | A defense preserving objections regarding source, integrity, and context is prepared. |
| Qualification | Whether the termination is justified, valid, or unfair is determined; compensation items are identified. |
| Expert and witness | Device examination and witness list are planned according to the burden of proof distribution. |
| Parallel avenues | In case of unlawful dissemination of personal data, KVKK (Personal Data Protection Law) and criminal avenues are evaluated. |
| Follow-up | Mediation, litigation, appeal, and enforcement stages are managed from a single point. |
Our office is in Tuzla; in labor disputes, we follow cases in the labor courts and mediation offices of Istanbul Anatolian and Istanbul Courthouses, as well as in the courthouses of Gebze and Kocaeli. We work on employee and employer cases in the regions of Tuzla, Pendik, Kartal, Ataşehir, Ümraniye, Kadıköy, Sancaktepe, Başakşehir, Esenyurt, Beylikdüzü and Gebze, Çayırova, Dilovası, Darıca.
6. Frequently Asked Questions
Can a screenshot of group correspondence be admitted as evidence in court?
Data in electronic format constitutes a document in accordance with Article 199 of the HMK; meaning it can generally be considered as evidence. However, according to Article 189/2 of the HMK, unlawfully obtained evidence cannot be taken into consideration for the proof of a fact. Therefore, what is decisive is who obtained the image and how it was obtained.
What happens if a member of the group provided the image?
There is a distinction between a person who is a party to the correspondence presenting their own conversation as evidence and a third party covertly obtaining the correspondence. In its decision numbered E. 2018/2785, the 9th Civil Chamber of the Supreme Court found the termination of an employee, who was insulted via message, to be justified.
What if the employer does not explain where they obtained the image?
In its decision numbered E. 2018/10718, K. 2019/559, the 9th Civil Chamber of the Supreme Court stated that a termination based on correspondence whose acquisition method could not be understood was unjustified. In the decision numbered E. 2023/15698, it was also emphasized that such correspondence cannot be considered as sole evidence.
Can I dispute the authenticity of the screenshot?
Yes. Since screenshots can be easily altered, you can object to the integrity and accuracy of the correspondence; you can request an expert examination on the device or the submission of the entire correspondence.
What should I do if only a part of it has been submitted?
Request that the entire correspondence be submitted to the file. A single message taken out of context can have a completely different meaning within the whole conversation; this objection is particularly effective in claims of insult and harassment.
Do I have any rights against my colleague who provided the image?
It depends on the specific case. Unauthorized transfer of a closed group correspondence to third parties may be considered unlawful dissemination of personal data or a violation of communication privacy; additionally, compensation may be claimed due to the violation of personal rights.
What can I claim if I am dismissed from my job due to a group message?
If the termination is deemed unfair, severance and notice pay; if you are covered by job security, reinstatement; moral damages may be claimed if the correspondence was obtained and disseminated unlawfully.
As an employer, how should I use the screenshot in my possession?
Document by whom, from which device, and on what date the image was obtained; if possible, obtain a statement from the employee who is a party to the correspondence and support the reason for termination with evidence independent of the message.
7. Conclusion
In conclusion, a screenshot of a WhatsApp group is technically a document; however, if obtained unlawfully, it cannot be considered as evidence. The Supreme Court deems termination based on correspondence with an unexplained source as unfair and states that such correspondence cannot be used as sole evidence. In contrast, an employee, who is a party to the correspondence, reporting an insult directed at them to the employer is evaluated differently; in such a case, a just cause for termination due to harassment may be accepted. For the employee, the defense depends on establishing objections regarding the source, integrity, and context in the correct order.
Contact
2M Law Firm · Postane Neighborhood, Seher Street No: 18/2, Tuzla / Istanbul
Phone and WhatsApp: 0505 390 25 48 — 0551 280 25 48 · Email: info@2mhukuk.com
This article is for general informational purposes. The mentioned decisions are based on the texts in their published sources and should be verified from UYAP or official decision databases before use.
