Melike v. Turkey – 35786/19 (European Court of Human Rights)

Information Note on the Court’s case-law 252
June 2021

Melike v. Turkey – 35786/19

Judgment 15.6.2021 [Section II]

Article 10
Article 10-1
Freedom of expression

Dismissal without entitlement to compensation of contractual employee of national education authority for putting “likes” on certain Facebook posts: violation

Facts – The applicant, a contractual cleaner employed at the relevant time by the Ministry of National Education, was dismissed without entitlement to compensation for having clicked on the “Like” button under various Facebook articles posted by third parties.

Law – Article 10:

Although her employer was a public body, the applicant had not had the status of a civil servant but that of a permanent employee; as such, she had been subject not to the specific legislation relating to civil servants but to the general employment law regime. Thus, the applicant had been dismissed by her employer in application of a decision by a disciplinary commission, established in accordance with the rules laid down in the collective labour agreement applicable to her workplace, and she had challenged her dismissal before the labour courts.

The applicant had been dismissed for having clicked the “Like” button on a number of articles posted by third parties on Facebook, the online social networking site. The use of “likes” on social networks, which could be regarded as enabling people to show their interest in and approval of content, was, as such, a common and popular form of exercising freedom of expression online.

The Labour Court had considered that the content which she had “Liked” could not be covered by freedom of expression and was likely to disturb the peace and tranquillity of the workplace, namely schools belonging to the Ministry of Education, on the grounds that the material pertaining to teachers could be considered offensive to them and could cause concern to parents and pupils, and that the other content was of a political nature. The Labour Court upheld the disciplinary commission’s finding. The Constitutional Court subsequently dismissed the applicant’s individual appeal, holding that the applicant had not substantiated her claim that her right to freedom of expression had been violated as a result of her dismissal.

In their decisions, the domestic courts did not appear to have carried out a sufficiently thorough examination of the content of the contested publications or the context in which they had been posted. The content in question had consisted of virulent political criticism of allegedly repressive practices on the part of the authorities, calls and encouragement to demonstrate in protest against those practices, expressions of indignation about the murder of the president of a bar association, denunciations of the alleged abuse of pupils in establishments controlled by the authorities and a sharp reaction to a statement, perceived as sexist, made by a well-known religious figure.

The applicant had not been a civil servant with a special bond of trust and loyalty to her hierarchy, but a contractual employee subject to employment law. The duty of loyalty, reserve and discretion owed by employees in private-law employment relationships to their employer could not be as strong as the duty of loyalty and reserve required of members of the civil service.

The national courts had completely failed to examine the potential impact of the conduct held against the applicant, although it was essential in assessing the potential influence of an online publication to determine its scope and public reach.

In this connection, the applicant was not the individual who had created and published the impugned content on the social network in question; her action had been limited to clicking on the “Like” button below that content. The fact of adding a “Like” to content could not be considered to carry the same weight as sharing content on social networks, in that a “Like” merely expressed sympathy for the content published, and not an active desire to disseminate it. Further, the authorities had not alleged that the content in question had reached a very large audience on the social media concerned. Some of the relevant posts had received only about a dozen “likes” and very few comments. Moreover, given the nature of her position, the applicant could not have been particularly well-known and had only limited representative status in her workplace, and her activities on Facebook could not have had a significant impact on pupils, parents, teachers and other employees. Moreover, the national authorities had not sought to establish in their decisions whether the latter had had access to the applicant’s Facebook account or to the contested “likes”, on the basis of the parameters, connections and degree of popularity of the applicant’s profile on that social network.

In any event, the national authorities had not specified in their decisions whether, during the period between the publication of the disputed content and the initiation of the disciplinary proceedings, which had been approximately six to nine months depending on the posts in question, the “likes” expressed by the applicant in relation to the disputed content had been noticed or complained of by pupils, parents, teachers or other employees in her workplace and whether those “likes” had given rise to incidents of such a nature as to jeopardise order and peace in the workplace.

Thus, the disciplinary committee and the national courts had not taken account of all the relevant facts and factors in the circumstances of the present case in concluding that the applicant’s contested actions were such as to disturb the peace and tranquillity of her workplace. In particular, the national authorities had not sought to assess the potential of these ’Like’ comments to bring about an adverse reaction in the applicant’s workplace, having regard to the content of the material to which they related, the professional and social context in which they were made and their potential scope and impact. Accordingly, the reasons given in the present case to justify the applicant’s dismissal could not be regarded as relevant and sufficient.

Lastly, the disciplinary commission, in a decision upheld by the national courts, had applied the maximum penalty provided for by the collective labour agreement, namely immediate termination of the employment contract without entitlement to compensation. This was undoubtedly an extremely severe penalty, particularly in view of the applicant’s seniority in her post and her age.

Thus, there had been no reasonable relationship of proportionality between the interference with the applicant’s right to freedom of expression and the legitimate aim pursued.

Conclusion: violation (unanimously).

Article 41: EUR 2,000 in respect of non-pecuniary damage EUR; claim for pecuniary damage rejected.

(See also Fuentes Bobo v. Spain, 39293/98, 29 February 2000, Legal summary; Heinisch v. Germany, 28274/08, 21 July 2011, Legal summary; Palomo Sánchez and Others v. Spain [GC], 28955/06 and al., 12 September 2011, Legal summary; Catalan v. Romania, 13003/04, 9 January 2018, Legal summary; Magyar Jeti Zrt v. Hungary, 11257/16, 4 December 2018, Legal summary; Kilin v. Russia, 10271/12, 11 May 2021, Legal summary)

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