Camera Recordings at Work

Camera Recordings at Work. The employer has fundamental obligations under the Labor Law (Law No. 4857) and Occupational Health and Safety legislation, such as managing the workplace, ensuring the proper execution of work, and providing occupational safety. These powers establish a basis that legitimizes the use of security camera systems in the workplace. However, this management right conflicts with rights guaranteed by the Constitution, particularly the employee’s right to privacy (Art. 20 of the Constitution) and the protection of personal data (Art. 20/3 of the Constitution). This conflict forms the core of the question of whether camera recordings can be used as evidence in courts.

The employer’s right to manage under the Labor Law and Occupational Health and Safety legislation necessitates the use of security camera systems in the workplace. However, this authority directly conflicts with the employee’s constitutional rights to privacy (Art. 20) and the protection of personal data (Art. 20/3). Camera recordings, as data that identifies or makes the recorded person identifiable, are unequivocally considered personal data under the Personal Data Protection Law (KVKK). Therefore, for these images to be admissible as evidence in a court of law, they must strictly comply with the stringent requirements of the KVKK and the constitutional principle of legally obtained evidence; the slightest break in this chain of legal compliance can lead to the complete invalidation of the images presented as evidence later on.

The Legal Nature of Camera Images

Workplace camera recordings, like all information that identifies or makes the recorded person identifiable, are definitively considered personal data under the Personal Data Protection Law (KVKK). Before debating whether the recordings have evidentiary value, this definition necessitates that the processes of obtaining, processing, and storing this data must be subject to all the strict obligations of the KVKK. For recordings to be accepted as evidence, the primary and indispensable condition is that the data must have been obtained lawfully. The slightest break in this chain of legal compliance results in the complete invalidation of the images subsequently presented as evidence.

II. Legal Basis for Camera Use in the Axis of KVKK: The Chain of Legal Compliance

The basic legal framework that the employer must adhere to when using camera systems is the data processing principles specified in Article 4 and the processing conditions in Article 5 of the KVKK. Compliance with these conditions is the first step towards the image gaining evidentiary value.

A. General Principles of Data Processing and the Obligation to Inform

One of the fundamental principles of the KVKK is that data must be processed in accordance with the law and good faith. If the employer is monitoring with camera systems, they must clearly inform their employees about this matter.

Procedural and technical details are of great importance in fulfilling this obligation to inform. The employer must completely specify all critical details in the illumination text they prepare, such as the purpose, duration, method of application, areas where the cameras will be placed, and the number of cameras of the monitoring activity. This information must be so transparent that employees must be ensured not to experience any hesitation about the times and methods of monitoring.

Pursuant to the KVKK principle of “processing for specified, explicit, and legitimate purposes,” using personal data processed for security purposes later on for performance evaluation or continuous surveillance of the employee is unlawful. If there is to be a change in the processing purpose, this situation must be specified and clearly notified to the data subject before the data processing activity. Using data with a change of purpose without notification constitutes a violation of the principles of transparency and good faith stipulated in the KVKK, as well as the European General Data Protection Regulation (GDPR).

At this point, full compliance with the KVKK is the primary condition for camera recordings to be admissible as evidence. Non-compliance with the principles of information and proportionality instantly moves the image into the category of unlawfully obtained evidence. If an employer commits a KVKK violation by not fulfilling their technical and procedural obligations (such as the obligation to inform), they break this chain of legal compliance. This means the employer eliminates the possibility of proving their justifiable termination ground through a KVKK violation. Even if the employer proves the employee’s most severe offense by not fulfilling the KVKK obligation, they cannot meet the burden of proof and risk having to pay unfair dismissal compensation.

B. The Principle of Proportionality and Limitations

The principle of proportionality in camera use, pursuant to KVKK Art. 4/2(ç-d), requires the activity to be relevant, limited, and proportionate to the purpose determined by the employer. This also includes the principle of minimum data processing. If the purpose can be achieved by a less intrusive method to the employee’s private life, this alternative method must be preferred. For instance, instead of using cameras against the risk of theft in changing rooms, alternative measures such as coded or locked locker applications should be considered.

The purposes considered legitimate under the KVKK are limited. Employers can use camera recordings only within the framework of legitimate interests defined by legal regulations such as occupational health and safety and workplace protection. Conversely, the use of cameras for the purpose of monitoring employees’ performance or continuous surveillance during working hours is deemed unlawful. Even camera use aimed at controlling the production process should be directed only at machinery, not directly at the employee.

The most critical limitation of the proportionality principle is the prohibition of recording in private areas. Monitoring with cameras in areas of high privacy such as toilets, changing rooms, resting rooms, and shower areas, and areas not considered common areas, is absolutely not possible. Even obtaining the explicit consent of employees in such areas does not make the process lawful.

Furthermore, proportionality is required in the technical setup of the surveillance system. Creating the feeling that employees are being watched at all times constitutes an unlawful situation. This situation not only reduces the possibility of the evidence being accepted but also gives the employee the right to file a non-pecuniary damage lawsuit against the employer on the grounds that their personal rights have been violated. If the surveillance system becomes a tool of psychological pressure rather than security, the employer faces the risk of losing compensation and contract termination cases.

C. Distinction Between Video Recording vs. Audio Recording and Retention Period

Within the framework of KVKK, taking only a video recording is generally accepted as sufficient for ensuring workplace security. Therefore, taking an audio recording in addition to a video recording may be evaluated as an unlawful data processing activity.

Audio recording constitutes a much more severe intrusion into the private life of the employee. Article 133 of the Turkish Penal Code (TCK) accepts listening to or recording individuals’ private conversations without their consent as a crime. If the employer secretly records audio, this recording may be both legally invalid and may lead to severe criminal liabilities (TCK Art. 132/133).

Pursuant to the KVKK, personal data obtained must be deleted when the purpose for which they were processed ceases to exist. The retention period for recordings must be proportionate to the purpose of monitoring and should not exceed a reasonable period. If the employer continues to store the images beyond the reasonable time frame during which security incidents occurred, this situation may constitute the crime of unlawfully processing (TCK 135) or storing personal data in violation of the KVKK. Data stored unnecessarily for too long not only loses its potential evidentiary quality but also becomes a “risky data pile” that subjects the employer to criminal and administrative liability under the TCK and KVKK.

III. Basic Principles in the Law of Evidence: The Doctrine of Unlawfully Obtained Evidence

The use of images obtained by camera recordings in the workplace as evidence is subject to the doctrine of the prohibition of unlawfully obtained evidence, which is valid in Turkish Law.

A. The Absoluteness of the Prohibition on Unlawfully Obtained Evidence

Article 38/6 of the Constitution of the Republic of Turkey mandates, as a fundamental human right, that findings obtained through unlawful means cannot be used as evidence. This constitutional principle is supported by both the Code of Criminal Procedure (CMK) and the Code of Civil Procedure (HMK).

In Criminal Procedure Law (CMK Art. 217/2), no information or finding obtained in an unlawful manner can be used as evidence in criminal proceedings or form the basis of a judgment. This prohibition is absolute; it is irrelevant who committed the unlawfulness. Whether obtained by official investigation authorities or private persons (including the employer) in an unlawful manner, the unlawfully obtained evidence cannot form the basis of a judgment.

B. The Framework for Evaluation in Civil Procedure Law

Labor cases fall within the scope of private law disputes and are subject to the provisions of the HMK. Article 189/2 of the HMK also states that evidence obtained unlawfully will not be taken into consideration by the court in proving a factual event.

In Civil Procedure, although some limited exceptions are debated compared to the absolute prohibition in Criminal Procedure, this is generally not applicable to workplace camera recordings. For example, in situations where the unlawfulness arises only from a formal deficiency and there is no violation of fundamental rights, the court may, rarely, consider the evidence. However, clandestine surveillance and recordings that violate the employee’s privacy inherently create a violation of a fundamental constitutional right, making it impossible to benefit from this exception. Recordings that violate the employee’s private life are definitively rejected even in labor cases.

C. “Fruit of the Poisonous Tree” Doctrine

An important principle applied in the legal system is the “fruit of the poisonous tree” doctrine. This rule means that new evidence subsequently reached based on evidence obtained through unlawful means (the poisonous tree) is also considered unlawfully obtained (the fruit) and is therefore invalid.

This principle also has serious consequences in labor law. For example, if the employer relies on a camera recording obtained in violation of the KVKK to find a document proving another offense in the employee’s computer or locker, this secondary document cannot be used as evidence because it is the product of the initial unlawfully obtained evidence. This principle exponentially increases the impact of the prohibition on unlawfully obtained evidence on the judicial process.

When the employer cannot meet the burden of proof for termination because the camera recordings are unlawful, the termination is deemed unfair, and the employee is entitled to severance and notice pay. The prohibition on unlawfully obtained evidence, in this context, severely restricts the employer’s management right in favor of the rule of law and the employee’s fundamental rights. This places the employer in the position of having made an “unfair dismissal,” despite the “justifiable termination” ground they obtained by risking legal consequences.

IV. Admissibility of Camera Recordings in Labor Law Cases: The Supreme Court’s Delicate Balance

Whether camera recordings are accepted as evidence depends on the nature of the concrete event, the purpose for which the recording was obtained, and the established case law of the Supreme Court (Yargıtay).

A. Technical and Procedural Requirements for Admissibility

Even lawfully obtained recordings must meet certain procedural and technical integrity requirements to be used as evidence in court.

1. Technical Originality: Recordings presented to the court must be prepared in their original form (on media such as USB/CD). It is mandatory for the images to be arranged in an uninterrupted, descriptive, and time-stamped manner.
2. Reliability: If the camera recordings have been tampered with, deleted, or cut, these recordings will be deemed invalid by the court, and the employer may face evidence forgery charges.
3. Expert Examination: The court may order an expert examination to determine if the recording is original and if manipulation has occurred. This necessitates that employers preserve the original digital format (protecting metadata and time stamps) when presenting recordings.

B. Critical Supreme Court Case Law on the Rejection of Unlawful Recordings

The Supreme Court has maintained a consistent stance on rejecting covert surveillance recordings that violate the fundamental rights of the employee.

The Supreme Court General Assembly of Law ruled that recordings obtained without the knowledge that their conversations were being recorded, on the grounds that they constituted a violation of the employee’s private life and were obtained without the employee’s consent, could not be evaluated as evidence. This means that if the employer obtains unlawful evidence, even if there is a justifiable termination ground, they cannot prove this ground and thus face the risk of unfair dismissal.

The Supreme Court makes a clear distinction between evidence obtained merely unlawfully and evidence that is fabricated or created as a setup solely for the lawsuit. Although unlawfully obtained evidence may be evaluated based on the specific circumstances of the concrete event, evidence unlawfully fabricated cannot be accepted as evidence under any circumstances.

For example, the Supreme Court General Assembly of Law did not base its judgment on a CD that was recorded without the defendant wife’s consent and created as a fabrication solely to be used as evidence in a divorce case, as it was unlawfully fabricated evidence. This principle also applies in labor cases: If the employer temporarily sets up a hidden camera or changes the monitoring area in a place not normally monitored, solely to catch a specific employee’s misconduct, this falls under ‘fabrication for the purpose of creating evidence’ and completely eliminates the possibility of the evidence being accepted.

C. Exceptional Circumstance: Spontaneous Recording Against a Crime Committed Against Oneself

There is a very narrow exceptional circumstance where secretly taken audio or video recordings are considered lawful. This situation occurs when the person making the recording is under the necessity of proving a crime (defamation, threat, slander, sexual harassment) or an unjust attack suddenly developing and being committed against them or their relatives at that very moment.

Two fundamental restrictive conditions are sought for this exception to apply:

1. The crime or unjust attack must occur “coincidentally” or as a “sudden event.”
2. The recording must not involve directing or fabrication solely for the purpose of creating evidence.

For example, the Supreme Court Criminal General Assembly ruled that a person arranging a meeting the next day, guiding the suspect to say insulting words, and recording the conversation was not considered a sudden development and was obtained solely for the purpose of creating evidence, thereby deeming the audio recording unlawful.

It is almost impossible for employers (corporately) to use this ‘sudden development’ or ‘similar to legitimate defense’ exception in systematic camera systems installed in the workplace, as the system is already planned and systematic. This exception usually relates to recordings made by individuals to protect their personal rights.

V. Criminal and Administrative Risks for the Employer from Unlawful Monitoring

Obtaining an unlawful camera recording does not only result in the rejection of the evidence in a labor case. It also constitutes an act that gives rise to serious criminal and administrative liabilities for the employer or relevant personnel, potentially leading to imprisonment. This situation reveals the cumulative effect of legal risks.

A. Sanctions Under the Turkish Penal Code (TCK)

Secret audio, photo, or video recordings obtained unlawfully constitute a crime under the TCK under the heading “Crimes Against Privacy and Secret Area of Life.”

1. Crime of Violating the Privacy of Private Life (TCK Art. 134):
   • The basic offense type prescribes imprisonment from one to three years for the person who violates the privacy of private life.
   • If the privacy is violated by recording images or sounds, the penalty is increased by one fold. The use of a hidden camera or audio recording in the workplace constitutes this qualified offense.
   • If images or sounds related to private life are unlawfully disclosed (e.g., shown to third parties for the purpose of submitting them to court), the penalty increases to imprisonment from two to five years.
   • These offenses under TCK 134 are subject to complaint and reconciliation provisions.
2. Crime of Unlawfully Recording Personal Data (TCK Art. 135): Recording personal data (camera recording) in violation of KVKK obligations may also constitute a separate crime under TCK 135.

Individuals who obtain unlawful evidence may be deemed to have committed a crime under the Turkish Penal Code. This criminal liability is independent of whether the person committing the unlawfulness is a public official.

B. Administrative Fines and Compensation Risk Under KVKK

Administrative fines can be imposed on employers by the Personal Data Protection Authority (KVKK) due to data processing activities that violate the provisions of the KVKK.

These administrative fines generally arise in cases such as failure to fulfill data security obligations (KVKK Art. 12) or neglect of the obligation to inform. The ceiling for the administrative fine to be applied to those who fail to fulfill data security obligations can reach up to 13,620,402.00 TL for 2025. KVKK violations pose a costly and serious administrative sanction risk for employers.

C. Cumulative Effect of Legal Risks

When an employer obtains an unlawful recording and submits it to the court, they not only face the risk of that evidence being rejected. They simultaneously face cumulative sanctions in three different branches of law:

1. Criminal Law Risk: Imprisonment or judicial fine under TCK 134/135.
2. Administrative Law Risk: Administrative fine reaching millions of Turkish Liras from KVKK.
3. Labor Law Risk: The termination being deemed unfair, the right of the employee to file a non-pecuniary damage lawsuit against the employer on the grounds that their personal rights have been violated, in addition to severance and notice pay.

This cumulative risk confirms that compliance with legal procedures is not a cost but a legal necessity for employers. Setting up a surveillance system contrary to the rules or using a recording for an unintended purpose opens the door to serious financial and criminal sanctions.

VI. Conclusion and Strategic Roadmap for Employers

A. Summary of Critical Findings

For workplace camera recordings to gain evidentiary value, it is a highly sensitive process located at the intersection of KVKK, TCK, and HMK/CMK provisions. Analyses show that for an image to be admissible as evidence in court, the following basic conditions must be absolutely met:

1. Lawful Acquisition: The recording must first fully comply with the KVKK principles of information, proportionality, and purpose limitation. Recordings taken in private areas (toilets, changing rooms) are unlawful and invalid.
2. Prohibition of Fundamental Rights Violation: Recordings that violate the employee’s private life, obtained secretly or for fabricated purposes (evidence creation), constitute a violation of fundamental rights and cannot be used as evidence.
3. Technical Integrity: Recordings must be presented in their original format, uninterrupted, and time-stamped; otherwise, the risk of evidence forgery arises.
4. Criminal Risk: An employer who obtains a recording in violation of the KVKK or TCK simultaneously faces serious risks such as imprisonment, administrative fine, and compensation liability.

B. Strategic Roadmap for Employers (Recommendations)

The strategic roadmap that employers must follow to manage camera recordings without legal risk and to use these recordings as evidence when necessary is as follows:

1. Determination of Legal Purpose and Scope: The purpose of camera use should be strictly limited to legitimate interests such as occupational health and safety and the protection of workplace property, excluding employee performance monitoring from these purposes.
2. Comprehensive and Continuous Information: A written and clear information text must be provided to all personnel, including new employees, about the purpose, duration, method of application, locations, and number of cameras for monitoring. Changes in the monitoring purpose must be notified in advance.
3. Proportionality and Priority of Alternative Solutions: Cameras should absolutely not be used in areas of high privacy (toilets, changing rooms, resting areas). Less intrusive methods such as locked lockers or alarm systems should be preferred wherever possible instead of cameras. Camera angles should not be aimed at continuously monitoring employees’ movements, computer screens, or behavior.
4. Strict Compliance with the Prohibition of Audio Recording: Taking audio recordings along with video recordings must be strictly avoided. This creates a serious criminal risk under the TCK.
5. Data Integrity and Retention Period Management: Recordings must be destroyed at the end of the reasonable period required by the processing purpose (pursuant to KVKK). Recordings to be presented as evidence in a legal process must be preserved securely in an original, uninterrupted, and time-stamped format, in accordance with digital forensics standards. Storing data for longer than necessary increases the risk of criminal liability.
6. Avoiding Unlawful Evidence Creation: Recordings obtained by setting traps for employees or fabricating events solely for a lawsuit are considered ‘fabricated evidence’ and are absolutely rejected. Instead of trying to prove justifiable termination by setting up covert surveillance systems, the employer should proceed with lawful methods (taking written defense, performance reports, etc.).