Turkey: April 1, 2024, Newsletter: Current Judicial Decisions

• A REVIEW ON CONSTITUTIONAL COURT'S ARTICLE 17 OF THE LAW NUMBER 5510 ON SOCIAL INSURANCE AND GENERAL HEALTH INSURANCE
• THE CONSTITUTIONAL COURT'S DECISION ON THE INDIVIDUAL APPLICATION REGARDING THE TERMINATION OF THE EMPLOYEE'S EMPLOYMENT DUE TO THEIR SOCIAL MEDIA POSTS
• NOTICE OF BREACH OF PDPL AGAINST ALLIANZ INSURANCE INC.
• 18/505 CAPITAL MARKET BOARD'S PRINCIPLE DECISION NO. i-SPK 128.22
• INJUNCTION AGAINST META PLATFORMS FOR VIOLATION OF ARTICLE 6 OF THE LAW ON THE PROTECTION OF COMPETITION

A REVIEW ON CONSTITUTIONAL COURT'S ARTICLE 17 OF THE LAW NUMBER 5510 ON SOCIAL INSURANCE AND GENERAL HEALTH INSURANCE

Section 3 of the second part of Law No. 5510 sets forth the short-term insurance provisions to which insured persons who are self-employed or self-employed on their own behalf and account are subject. Work accidents, occupational diseases, illness and maternity are accepted as risks subject to short-term insurance.

In the first paragraph of Article 15 of the aforementioned Law, ailments other than occupational accidents and occupational diseases that cause incapacity for work are defined as sickness, and in the second paragraph, ailments and disabilities related to pregnancy and maternity from the date of the onset of pregnancy of the insured woman or the non-insured spouse of the insured man, the woman receiving income or pension due to her own work, or the non-insured spouse of the man receiving income or pension, until the first eight weeks after birth, and in case of multiple pregnancies, until the first ten weeks, are defined as maternity.

Article 16 of the Law sets out the rights provided by the occupational accident, occupational disease, sickness and maternity insurance and temporary incapacity benefit is also listed among them. Temporary incapacity is the temporary absence from work during the rest period specified in the reports of the physician or medical board authorized by the Institution in case of work accident, occupational disease, illness or maternity. Temporary incapacity benefit, on the other hand, is the benefit given during the temporary incapacity periods specified in the Law in cases of work accident, occupational disease, illness and maternity. In cases of temporary incapacity for work, since the insured is temporarily unable to work, their monthly or weekly earnings are reduced and they lose income. Compensation for this loss of income is provided by the temporary incapacity benefit.

Article 7 regulates the daily earnings to be used as the basis for allowances and incomes. In the first paragraph of the aforementioned article, the daily earnings to be taken as the basis for the calculation of the allowances or incomes to be given or the incomes to be connected in cases of work accident, occupational disease, illness and maternity; in the last three months in the twelve months preceding the date of work accident, in the case of occupational disease, in the last three months in the twelve months preceding the date of incapacity for work; in the case of maternity and illness, in the twelve months preceding the date of incapacity for work. However, for those who have reported less than 180 days of short-term insurance premiums in the last year before the date of incapacity for work, the daily earnings to be taken as the basis for the allowance in case of illness and maternity cannot exceed twice the lower limit of the daily premium based earnings on the date of incapacity for work. In this respect, it is stipulated that the calculation of daily earnings in cases of illness and maternity will be made by a different method than the calculation in other cases. According to this different calculation method, the amount of temporary incapacity allowance to be paid to the insured in case of illness and maternity risks will be less than those paid to those exposed to other risks. In subparagraph (b) of paragraph 3 of the aforementioned article, it is stipulated that in the calculation of the daily earnings based on the allowance or income of those who are considered insured pursuant to subparagraph (a) of paragraph 1 of Article 4, the wages, bonuses, increases, compensation and payments of this nature made pursuant to the decision of the administrative or judicial authorities shall not be taken into account for the months prior to the three-month period taken as the basis for the calculation of the allowance and income, while the phrase "...three months..." in the aforementioned subparagraph was removed from the text of the article by Law No. 7316. The removal of the phrase in question from the text of the article constitutes the rule subject to the lawsuit. In this respect, while before the rule, in the calculation of the daily earnings based on the allowance or income, those related to the months prior to the three-month period taken as the basis for the calculation of the allowance and income from the wages, bonuses, raises, compensation and payments of this nature made in accordance with the decision given by the administrative or judicial authorities are not taken into account, after the rule, those related to the months prior to the period taken as the basis for the calculation of the allowance and income will not be taken into account.

Article 60 of the Constitution states that "Everyone has the right to social security. The State shall take the necessary measures and establish the organization to ensure this security." It is regulated that the State must provide social security to all its employees without discrimination. However, the rules subject to the lawsuit limit the right to social security of those exposed to these risks by stipulating a reduction in the amount of temporary incapacity allowance to be paid in cases of maternity and illness.

Article 13 of the Constitution states that "Fundamental rights and freedoms may be restricted without prejudice to their essence only for the reasons specified in the relevant articles of the Constitution and only by law. Such limitations may not be contrary to the letter and spirit of the Constitution, the requirements of the democratic social order and the secular Republic, and the principle of proportionality." It should be noted that the restriction stipulated in the Constitution must be proportionate and in accordance with the reason.

The rules reduce the average daily earnings that can be obtained in the form of maternity and sickness benefits. In addition to those who abuse the system by violating the rules, insured persons who comply with the rules and are exposed to the risk of maternity or sickness will also be negatively affected by this reduction. The rules do not include safeguards to distinguish these policyholders from those who abuse the system. Therefore, it is concluded that the limitation imposed by the rules imposes an excessive burden on policyholders who comply with the rules and are exposed to the risk of maternity or illness, and therefore cannot be said to be proportionate.

As a result of the reasons explained, it has been found to be contrary to Articles 13 and 60 of the Constitution, and the phrases "...in case of illness and maternity..." and "...in the twelve months preceding the date of the onset of incapacity for work in case of maternity and illness..." in the relevant article of the law have been removed unanimously.

As a result of the Constitutional Court's decision, the phrases in the Social Security and General Health Insurance Law that are contrary to the principle of equality have been removed. The principle of equality is laid down in the articles of the Constitution. Every individual should have the right to social security in equal amounts.

Link to the decision; https://normkararlarbilgibankasi.anayasa.gov.tr/ND/2024/31?KararNo=2024%2F31

THE CONSTITUTIONAL COURT'S DECISION ON THE INDIVIDUAL APPLICATION REGARDING THE TERMINATION OF THE EMPLOYEE'S EMPLOYMENT DUE TO THEIR SOCIAL MEDIA POSTS

The individual application numbered 2019/20965 and dated 13.12.2023 was published in the Official Gazette numbered 32502 on 27.03.2024.

The application relates to the claim that the applicant, who works as a worker in a cleaning company, had their freedom of expression violated due to the termination of their employment contract due to their social media posts.

The applicant worked as a cleaner in a private cleaning company subcontracted to the hospital under an indefinite-term employment contract until their employment contract was terminated. The applicant's post that was the subject of the termination of their employment contract was "People attack wherever they see military vehicles. You blind ignorants, if there was a military coup, would you have enough power to stop those tanks? It's all a scenario. The person you attacked is your soldier, you idiot. I hate this country, I don't know whether to laugh or cry, what kind of ignorance is this?" The employer company terminated the applicant's employment contract for just cause on the grounds that the post in question was insulting to the President. Thereupon, the applicant filed a claim for reinstatement against the employer, stating that the termination was unfair and invalid.

Bakırköy 25th Labor Court dismissed the lawsuit. In its reasoned decision, the court evaluated that the post shook the employer's trust and that the employer could not be expected to maintain the employment relationship in this state, and concluded that the termination was based on just cause.

Upon the appeal of the first instance court's decision, the 25th Civil Chamber of the Istanbul Regional Court of Appeals (RCA) decided to accept the appeal on the grounds that the plaintiff's defense was not taken before the termination. The court decided to annul the decision, to accept the lawsuit and to reinstate the applicant with the invalidity of the termination.

The decision was then appealed. The 9th Civil Chamber of the Court of Cassation, which examined the file, reversed the decision of the Regional Court of Appeals and dismissed the case. In its judgment, the Court of Cassation stated that the case was in support of the coup attempt and that this could be grounds for termination for just cause.

As a result of this process, the applicant filed an individual application on 07.06.2019. The applicant argued that the termination of their employment contract violated their right to freedom of expression and right to a fair trial, claiming that it was not explained how the post they made in their private life, which did not contain insult or humiliation, affected their work life. The application was examined within the scope of freedom of expression.

Article 25 of the Labor Law No. 4857 lists the reasons for termination of employment contracts by the employer for just cause, whether the term is fixed or not. In order for the employer to terminate the employment contract, it is necessary for the employer to show what the "situations that do not comply with the rules of morality and good faith and the like" are.

In light of the reasons explained, the Constitutional Court considered the applicant's post as legitimizing, praising or encouraging terrorism, terrorism and violence and did not consider it within the scope of freedom of expression. As a result, it was concluded that the restriction imposed on the freedom of expression in the concrete case did not render the said right meaningless, met a compelling social need and was proportionate. It should be decided that there is no violation of freedom of expression.

Although social media posts are considered within the scope of freedom of expression, this freedom is subject to a limitation. As a matter of fact, terrorist organizations aim for their views to spread and their ideas to take root in the society, and all means can be used to achieve this goal. In this way, posts supporting terrorist organizations cannot be shared under freedom of expression. The fact that it is seen as a sharing that will ultimately break the trust between the employer and the employee has also resulted in termination for just cause.

Link to the decision; https://www.resmigazete.gov.tr/eskiler/2024/03/20240327-8.pdf

NOTICE OF BREACH OF PDPL AGAINST ALLIANZ INSURANCE INC.

Article 12, paragraph 5 of the Personal Data Protection Law No. 6698 states that "In the event that the processed personal data is obtained by others through unlawful means, the data controller shall notify the relevant person and the Board as soon as possible. If necessary, the Board may announce this situation on its website or by any other method it deems appropriate."

In the data breach notification submitted to the Board by Allianz Insurance Inc. which has the title of data controller, information down below was included;

-The breach was detected on 21.03.2024 when the National Cyber Incident Response Center reported that some information belonging to the data controller was offered for sale on the internet by cyber attacker/s,

-As a result of the examinations made, it was determined that unauthorized access was provided by cyber attacker/s to the platform named "Service Desk", where the data controller agents submit their requests and complaints to the data controller,

-The personal data affected by the breach cannot be determined precisely, but identity, visual and audio recordings, communication and financial data (including credit card information), philosophical beliefs, religion, sect and other beliefs, health information and association membership data may have been affected by the breach,

-The exact number of people and records affected by the data breach could not be determined,

-That the relevant groups of persons affected by the breach are employees, business partners, customers and potential customers,

Although the investigation on the issue is ongoing, it is stated in the notification that the data subjects can receive information about the personal data breach via e-mail and call center.

18/505 CAPITAL MARKET BOARD'S PRINCIPLE DECISION NO. i-SPK 128.22

In order to contribute to the reduction of the current account deficit in our country's economy through capital markets, thus making our country's growth sustainable by creating a current account surplus and also contributing to green and sustainable growth, it was deemed necessary to make different regulations on a sectoral basis.

Accordingly, in public offering applications;

- Operating in the renewable energy sector, and as of the financial statements of the last two years prior to the application date, prepared in accordance with the Board's regulations and audited by private independent auditors, at least 75% of its revenue is generated from renewable energy generation sales,

-Petrochemical production sales of at least 75% of its revenue from petrochemical production sales as of the financial statements of the last two years prior to the application date, prepared in accordance with the regulations of the Board and audited by a special independent audit,

-Production/service sales for the defense industry, which operates in the defense industry sector or provides services to the said sector in the field of information and communication technologies and software, and which has at least 75% of its revenue from production / service sales for the defense industry as of the financial statements of the last two years prior to the application date, which have been prepared in accordance with the Board's regulations and have undergone special independent audit,

-Sales of unprocessed raw products obtained as a result of agricultural production, at least 75% of its revenue as of the financial statements of the last two years prior to the application date, prepared in accordance with the Board's regulations and subject to special independent audit,

-Certified by a public authority to have an innovative and scalable business model that generates high added value based on advanced technology by supporting green and digital transformation and has any two of the following conditions

At least 75% of its revenue as of the financial statements of the last two years prior to the application date, prepared in accordance with the Board's regulations and subject to special independent audit;

-As of the application date, to be accepted from one of the regions designated as a Technology Development Zone by the Ministry of Industry and Technology (Ministry) and to continue its activities in this region,

-As of the application date, having an active R&D Center approved by the Ministry in accordance with the Law No. 5746 on Supporting Research, Development and Design Activities,

-Having a patent certificate issued by the Turkish Patent and Trademark Office within the last five years,

-To receive support within the scope of R&D, Product Development and Innovation Support from the Small and Medium-Sized Enterprises Development Organization within the last five years,

-Having a publicly funded R&D project started or completed within the last five years.

For partnerships derived from operating activities, the amounts are applied as follows.

TL For 2022 For 2023

Net Sales Revenue 180.000.000 270.000.000

Total Assets 300.000.000 450.000.000

INJUNCTION AGAINST META PLATFORMS FOR VIOLATION OF ARTICLE 6 OF THE LAW ON THE PROTECTION OF COMPETITION

META Platforms Inc. is recognized as one of the five largest technology companies. It is known that WhatsApp, which currently offers ad-free and free service to users, was taken over by Facebook Inc. in 2014, and that Facebook Inc., founded in 2004 in the USA, is one of the world's leading technology companies and includes platforms such as Instagram and Facebook Messenger as well as WhatsApp.

In 2021, the Competition Board started an investigation against META Platforms Inc. on suspicion of abuse of dominant position regulated under Article 6 of the Law No. 4054 on the Protection of Competition with the data collected from Facebook, Instagram and Whatsapp services.

According to the aforementioned information text, in order for users to continue using WhatsApp, they must consent to the sharing of their personal WhatsApp data with Facebook Inc. companies, otherwise they will not be able to use WhatsApp as of 08.02.2021, Facebook Inc. dictates to WhatsApp users to make their personal data available to Facebook Inc. companies with this update. companies, the data sharing obligation imposed on WhatsApp users as a condition for using the service, and that the data obtained in Turkey within the scope of the products and services offered by the relevant undertakings are used within the scope of other products and services offered by these undertakings.

In its latest update to its privacy policy, WhatsApp announced that it would require users to merge their WhatsApp data with Facebook data as a condition for continued use of WhatsApp, leaving users with no other choice.

At the same time, when the data merging policies between the two applications within META Platforms Inc. are examined during the investigation, it is mentioned that the following data can be transferred from Instagram to Threads;

-Instagram login information

-Instagram account number

-Instagram name and username

-Instagram profile information such as profile picture, biography and links

-Followers

-Followed accounts

-Age information

It has been observed that the information provided is used without user consent to provide, personalize and improve Threads and META products.

The investigation also revealed that Facebook, another application on the platform, allows advertisers to present their advertising messages to potential customers with the intention of eliciting a specific audience response in order to increase sales and profits, that they use multiple channels to maximize their return on investment, that there are many services and businesses to help switch between channels, and that the widespread availability of advertiser tools such as real-time dashboards and cross-channel attribution technologies allows advertisers to instantly shift their advertising budgets to the campaign that offers the highest return on investment.

According to Article 6 of the Law No. 4054 on the Protection of Competition, "It is unlawful and prohibited for one or more undertakings to abuse their dominant position in a market for goods or services in the whole or a part of the country, either alone or through agreements or concerted practices with others."

According to Paragraph 7 of the Guidelines on Dominant Position, for a conduct to constitute an infringement, the undertaking under investigation must be in a dominant position in the relevant market and the conduct must also be abusive. According to the same Guidelines, abuse is when an undertaking in a dominant position takes advantage of its market power to engage in conduct that is likely to directly or indirectly reduce consumer welfare. The Board may choose not to examine other factors if it is of the opinion that the undertaking is not in a dominant position.

As a result of the investigations conducted within the scope of the investigation, META Platforms Inc. was found to be in a dominant position in the relevant consumption market and was found to have abused its position through its conduct.

Within the framework of the current findings; it was ruled that META made the activities of its competitors difficult by combining the data of users who created Threads profiles based on Instagram accounts without providing the users with the option of consent, and abused its dominant position with WhatsApp and Facebook applications, and it was evaluated that it would cause irreparable harm and a temporary injunction was granted.

As a result of the Competition Board's investigation, META was imposed an administrative fine of TRY 4,796,152.96 over its gross revenues for the year 2022 for each day starting from December 12, 2023 until it fulfills its obligations.

Link to the decision; https://www.rekabet.gov.tr/Karar?kararId=f0b80fbd-0054-4231-ba8a-5137a5eae326

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