Memorandum on Mandatory Video Surveillance in Workplaces

I. Statutory on Mandatory Video Surveillance in Workplaces

There is no regulation available in Turkish Code of Obligations or the regulation on occupation health and safety regarding the obligation for surveillance in workplaces either in terms of Labor Law or employees who are not subject to Labor Law.

This is legally subject to the restrictions included in Personal Data Protection Law numbered 6698, since surveillance is qualified as processing personal data, rather than the obligation for surveillance.

Article 419 titled “Use of personal data” of the Turkish Code of Obligations in terms of employees not subject to Labor Law regulates that “The employer may use the personal data of the employee providing that that it is mandatory for the tendency of the employee or for the fulfillment of the service contract.” It should be noted that a limited regulation is brought with the law on the requirement principles in the surveillance of employees not subject to Labor Law.  The same principles are valid in terms of the Law on Personal Data Protection No.6698.

Also, technical surveillance and tracking is regulated according to article 140 of the Turkish Code of Criminal Procedure and the terms of the article. Secretly monitoring in workplaces even for the purpose of preventing crime is prohibited unless it is under the scope of this article.

The mandatory condition for surveillance in our legislation as follows. However, when most of these regulations are examined, it is seen that the said provisions are regulated with the communiqué and regulation and have a purpose  of security:

1. According to clause (o) of article 5 in the Directive on Business Licenses and Work Permits titled “General Conditions for Workplaces”: (Article 5- Workplaces that have been granted a business license and work permit must meet the following conditions.) (Annex: 2016/9607 – 12.12.2016 / art.1) Installation of the necessary surveillance systems, for the detection of those entering and leaving the workplaces in Liquefied petroleum gas cylinder distribution centers and retail outlets and storage areas for the cylinders are (surveillance footage is kept for thirty days and footage can only be provided to authorized persons and institutions) checked to see whether these condition are met during inspections by the Authorized administrations after the business and work license is issued.
2. According to Article 13 of Regulation on THE PRINCIPLES OF STANDARDS, PREFERENCE AND AUDIT IN AUTHORIZED BROKERAGE HOUSES IN THE ANALYSIS OF PRECIOUS METALS AND STONES:” (1) A brokerage house, should be supported by at least one trained and experienced security staff and a camera system”.

3. In the Communiqué on Continuous Wastewater Monitoring Systems, a camera can be installed inside the cabin. However, there is a more technical issue here.
4. Clause 10 of article 17 titled rules of procedures, safety and environment in regulation on Shipyards, Shipbuilding and Boatyards states that: “(10) Premises and work areas within Shipyards are monitored with CCTV. Surveillance footage is stored for at least one year by the facility manager.”
5. Article 6 on Operating Principles in the Regulation on Technical Inspections of Vehicles Carrying Hazardous Materials and Superstructures states that: “ – (1) The operator is obliged to comply with below mentioned conditions: I) a camera surveillance system is installed to monitor vehicles entering the inspection area and the inspection itself and the video footage is kept for at least six months.”
6. (Botaş) The Regulation Regarding Technical Safety and Environment Regulation on Construction and Operation of Crude Oil and Natural Gas Pipeline Facilities includes a similar provision.
7. Regulation on Secondary Education Institutions by the Ministry of Education stipulates a similar provision: “ARTICLE 218 – (1) All types of education and counseling activities are given importance in order to ensure a safe school environment.  Necessary measures are taken to protect students from physical and psychological violence by using communication tools, camera and alarm systems. Personnel are assigned to ensure security.”
8. Mandatory camera systems are included for warehouses and customs bonded areas in the Customs Legislation.
9. Article 49(6) of Regulation on Private Hospitals camera recording is allowed in common areas, taking into account patient privacy, and these recordings will be kept for two months.
10. The same provision is included in the Regulation on Rehabilitation Centers for Drug Addiction.
11. According to clause (g) in article 9 titled Workplaces Policies in The Regulation on Internet Mass Use Providers: “ARTICLE 9 – (1) The rules to be followed in the workplaces are: g) Necessary camera system is installed to monitor those entering and leaving the workplace. Surveillance footage acquired through the surveillance system is stored for seven days. The recordings are accessible only to authorized personnel and institutions.”
12. There are similar provisions in the legislation regarding the licensed safekeeping depots.
13. 10^th clause of the article 15 of the Communiqué on the Management and Control of Information Systems for Payment Agencies and Electronic Money Institutions:” The institution, installs security cameras at the service points. The imaging quality for the camera recording shall be enough to recognize the identity of individuals. The recordings are kept for a minim of two months and a periodic control of the camera equipment is conducted.  An extra camera system is not installed if there is an existing camera infrastructure that is installed in accordance with the conditions stated in the clause. The requirement to install a security camera for service points in the area of operations for ​​public security and intelligence agencies is fulfilled, provided that permission can be obtained from the relevant public security and intelligence agencies.”
14. Article 19 titled Security Services in the Regulation on Shopping Centers is as follows: “ – (1) Private security services are provided, in accordance with Law on Private Security Services No. 5188 dated 10.06.2004 and relevant regulations, for all connections an annexes with and entrances and exits including the car park of the shopping center. (2) Surveillance cameras record all common areas excluding infant-care rooms and WC’s that are not appropriate to monitor, and surveillance footage are kept for at least thirty days.  The management of the shopping centers is responsible for these recording.”
15. Article 32 on ATM Security in the Communiqué Regarding Principles of Information Management Systems for Banks: “10) The bank installs security cameras where ATM’s are located. Cameras are positioned to keep the line of sight away from the customer’s keyboard movements.  Surveillance footage is stored for two months and periodic controls are made to check the surveillance equipment. There is no need to install a separate security camera specifically for the ATM in the presence of a security camera infrastructure, which also includes the ATM in terms of viewing area that meets the conditions in this clause. “
16. Article 4 titled Checkroom in the Communiqué for Instruments of Crime: “4) To store instruments of crime in buildings including legal departments; a safe location is allocated that doesn’t include a window, if not, a window with metal railings that is not possible to remove from the outside, with double lock steel or iron door, which is not humid, has constant ventilation and has all precautions against fire. These locations include a surveillance system.”
17. Similar provision exists for women and children in regulations for Women’s Shelters, Child Support Centers and Pre-School Education.
18. Legislation on small and medium enterprises development organization also includes regulations on cameras.
19. This regulation is also enacted for personnel and patients in the pressure chamber in hyperbaric oxygen therapy centers.
20. Video Surveillance Systems are also included in the legislation to prevent forest fires.
21. Similar provisions are included in the Communiqué on Unauthorized Water Consumption in The Regulation on Potable Water Supply and Distribution Systems.
22. There is a camera system for the car parks where the vehicles are towed in the Road Traffic Regulation.

II. Regulation of Mandatory Video Surveillance with Governorship Directives Drafted in Scope of Law for Provincial Administration and Law of Misdemeanor

The mandatory camera systems are imposed by Governorships in provinces in accordance with article 48 of Freedom of Labor and Contract in the Constitution, article 981 of Right to Self Defense of the Possessor in the Turkish Civil Code, article 9 of Law for Provincial Administration, article 2 of law of police powers, article 32 of Law of Misdemeanor, and article 6 and 20 (c) of Law on Private Security Services. Essentially this is not a lawful administrative procedure. A request to terminate can be demanded by employees and other third parties. Unless terminated, the practice will continue.

For those who do not comply with the requirements and do not comply with the orders of the local authority, a penalty can be imposed on places that have not installed a camera system in accordance with Article 32 of Law of Misdemeanor or Article 66 of Law for Provincial Administration.

Pursuant to the authority granted with the Law for Provincial Administration (art. 9), the governorship can impose mandatory surveillance by camera to workplaces and places deemed necessary located in the province, which effects basic rights and liberties of third parties, as a result such restrictions can only be enacted by law.  Therefore, these practices can be terminated.

III. Supreme Court Decisions on Mandatory Video Surveillance in Workplaces

There is no precedent in the Court of Appeals decision regarding mandatory video surveillance in workplaces. The conditions when video surveillance is permitted are evaluated in the precedents of the Court of Appeals rather than mandatory surveillance by camera in general. There is no Court of Appeals decision that determines the basic criteria for the permission to monitor the workplace by camera. In the precedents of the Council of State, this situation is handled in terms of privacy of personal data, private life, article in the Turkish Penal Code, illegal evidence, basic personal rights and principles of proportionality, and the transactions of the administration are evaluated in accordance with these criteria in accordance per law.

IV. Mandatory Video Surveillance in Workplaces in the Doctrine

The doctrine does not handle de subject as an obligation.  The doctrine approaches the subject on video surveillance in the workplaces as an exceptional case, although surveillance can be issued under certain circumstances.

The doctrine includes notable conditions on surveillance in workplaces with via only by video or video with audio in this scope. These conditions are as follows:

• Employees shall be notified about video surveillance in their workplaces beforehand. Secretly monitoring is prohibited.
• The image and audio recordings of an employee is sensitive personal data. The consent of the employees is necessary in order to monitor and record employees, except for the special conditions included in the law on the protection of personal data.
• Surveillance of special areas (changing rooms, recreation areas, private and individual offices and WC’s) in the workplace is strictly prohibited.
• The employer should have justifiable reasons for video surveillance and recording in the workplace.  Acceptable reasons included in the doctrine are: “control of entrance-exit to the workplace,  ensuring the efficiency of the production process, supervision of technical operations, surveillance of technical devices and workplace departments that are important for security, preventing third parties from committing a crime and detection, monitoring the employee’s compliance with occupational health and safety measures, supervising the worker on using workplace tools and equipment, product quality and performance checks of the employee, detecting violations of employee’s contractual obligations.
• Adherence to surveillance under such purpose and reasons is explained under the principles of proportionality and necessity. The employer is expected to adhere to these principles. Balance of interest is pursued in terms of the employer’s right to management and best interest, as well as private and personal rights of workers.
• Video recordings and monitoring solely focusing on the employees and their behavior is not acceptable. However, if the employee’s work area is close to the production site and the employee is also included in the image recording of the production site, an exception is given in these cases.  For example, it is acceptable to install a camera system that displays the cash register where the employee is sitting and a recording including the employee stealing money from the cash register is acceptable.

According to the principles of necessity and proportionality, it is considered unlawful to apply video surveillance if it is possible to achieve security and the mentioned goals in the workplace by taking different security measures or control procedures.

To conclude, there is no law that clearly regulates mandatory video surveillance in workplaces except for the mentioned communiqués and regulations.   Administrative practices and procedures on this matter are against the law and may be requested to be terminated.

Submitted for your information,