In the case Melike v. Turkey, the ECHR found that the dismissal of a public administration’s employee for liking a politically sensitive Facebook post violated the freedom of expression. The Court reiterated that an employee’s duty of loyalty and discretion does not remove the obligation of the authority to carefully balance the public interest in tranquillity at the workplace, on the one hand, and the freedom of expression of the employee, on the other.
The European Court of Human Rights’ ruling of 15 June 2021 concerned the dismissal of a contractual cleaning lady in an educational government service because she ‘liked’ politically sensitive posts on Facebook. Ms Melike had worked as a contract cleaning lady at a Turkish Ministry of Education since 1996. In 2016, disciplinary proceedings were initiated against her because she liked several Facebook posts containing serious accusations against some teachers, as well as political criticism. Her employer, the Ministry of Education, considered this to constitute a breach of her duty of loyalty. She was consequently dismissed, as such behaviour was found to be in breach of the collective labour agreement that applied in the workplace. Ms Melike started proceedings to overturn this decision and to be allowed to return to work.
The Turkish labour court rejected her claim, finding that a Facebook-‘like’ is not covered by the right to freedom of expression and that the content of these posts could disturb the peace and tranquillity at the workplace. The court highlighted that the respective Facebook posts not only contained accusations against some teachers, but were also political in nature. Given that these posts were public, they could be viewed by the students, their parents, and the teachers, which could lead to concerns about the school. Therefore, the labour court concluded that the dismissal was valid. The court of appeal followed the labour court’s finding, and the application to the Turkish Constitutional Court was declared inadmissible. Ms Melike therefore lodged an application before the ECtHR, where she claimed that a violation of her right to freedom of expression as stipulated in Article 10 of the ECHR.
The Court stated that liking Facebook posts can be seen as an interest in, or an approval of, a certain message. Thereby, the Court once again confirmed its broad definition of what constitutes an opinion. As such, a Facebook-like or any other online action signalling an approval, dislike, or other emotion with regard to a social media post falls within the scope of the exercise of freedom of expression and, therefore, in the scope of Article 10 ECHR.
As to the merits, the Court stated that the Facebook posts concerned matters of general interest. The content consisted of sharp political criticism of alleged repressive practices by the authorities. The Court reiterated that Member States have a limited margin of appreciation when political speech or matters of public interest are concerned. Moreover, the sanction for the ‘like’ was severe, namely the dismissal of the applicant. As such, only weighty reasons could justify the limitation of the freedom of expression.
Turkey argued that employees of the Ministry of Justice are under an obligation of loyalty, reserve, and discretion. This implies a cautious approach to the use of social media. The Court agreed that, in a relationship of employment, certain restrictions to Article 10 ECHR can be justified even with regard to political speech or speech of public interest. A duty of loyalty, reserve, and discretion of employees working for the public administration might warrant such a limitation. However, the Court recalled that such a duty of employees working under private law, such as Ms Melike, cannot be considered as strict as that of civil servants. This is all the more so when the employee does not have a representative function, such as in the case of a cleaning lady.
To assess whether weighed reasons were provided for the dismissal of Ms Melike, the Court examined the decision-making process of the disciplinary committee of the Ministry of Education and of the Turkish courts. The ECtHR found that neither the disciplinary committee nor the national courts in Turkey had sufficiently examined whether the content of the Facebook messages could actually disturb the peace and tranquillity at the workplace to such an extent as to justify the dismissal of the applicant. Moreover, neither the committee nor the courts had taken into account that the applicant had not composed or shared the messages herself. The fact that the decision-making process was insufficiently in-depth – and that the dismissal was not based on a concrete analysis – implied that the Turkish courts had not substantiated the proportionality of the balance struck between the freedom of expression of the employee and the interests put forward by Turkey to justify the dismissal.
Therefore, the ECtHR concluded that Ms. Melike’s dismissal constituted a violation of Article 10 ECHR.
The duties of loyalty, discretion, and reservation are cornerstones of the deontology of employees of public administrations. This case once again shows that these deontological obligations can justify restrictions on the freedom of expression of employees, albeit not as far reaching as in the case of civil servants (Heinisch v. Germany, Catalan v. Romania). Nevertheless, a strict proportionality test remains necessary when limiting fundamental rights, also when social media actions of employees are concerned. Such a balance can only be struck if the balancing of the public interests and freedom of expression by the national courts and authorities was sufficiently substantiated and qualitative. This case also shows, once again, the importance the Court attaches to the decision-making process by national authorities and judiciaries. In particular, the blunt axe of dismissal without compensation – even in the case of employment within the public sector – warrants an especially thorough deliberation, justification, and analysis.
ECtHR 15 June 2021, nr. 35786/19, Melike v. Turkey.
Posted by Jasper Van Steenbergen, PhD Researcher Administrative Law at University of Antwerp, Research Group Government and law
Suggested citation: J. Van Steenbergen, “Liking Facebook posts by an employee: freedom of expression versus the duty of loyalty”, REALaw.blog, available at https://realaw.blog/?p=521.