Selin OZBEK CITTONE
Attorney at Law / Managing Partner, Dual qualified lawyer (Turkey and England & Wales)
06 April 2016
Late in the night of 24 March 2016, Turkish National Parliament finally took the first step to have the long awaited Data Protection Law (“Law”) in place and sent the law to the President of Republic for his approval. The Law is expected to enter into force in the course of April 2016.
As part of its efforts to harmonize its legislations with the European Union, Turkey has followed the principles for Data Protection Directive (95/46/EC) (“Directive”) and vastly adopted the principles set forth in the Directive.
Data Protection Authority (“DP Authority”) will be established in a period of 6 months as an independent supervisory authority to prepare secondary legislation on issues addressed in the Law and to monitor the compliance of data controllers and processors with the legal requirements.
Data Protection Board (“DP Board”) will be the executive body of the DP Authority and will have wide regulatory and enforcement duties and rights to monitor and ensure the application of the Law and most importantly will have the power to impose sanctions stipulated thereunder.
The DP Authority must issue the secondary legislation within 1 year following the issuance date of the Law in the Official Gazette. Secondary legislation will be important, especially, for the definition of certain concepts, as well as regulating rules for rendering data anonymous, transferring data overseas and appropriate technical and organizational measures to be taken against unauthorized or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data.
Under the supervision of the DP Board, the chairmanship of the Authority will keep the registries at the Data Controllers’ Registry (“Registry”). In principle, all data controllers will be required to be registered with the Registry, but the DP Board will determine exemptions to this registry requirement.
The Law foresees a penalty-free period of 6 months for companies to evaluate and adopt their operations in compliance with the Law. At the end of such 6 months the compliance program of the companies should have been completed. Otherwise they might face administrative and imprisonment fines.
In relation to data collected and processed prior to the announcement date of the Law there will be a transition period of 2 years. The companies will be required to be effectively compliant with the Law at the latest within 2 years following the announcement date of the Law in the Official Gazette.
The DP Board is authorized to impose heavy administrative penalties in case of
The administrative penalties vary for each type of breach and can go up to TRY 1 million for each occurrence. Also the authorized persons of the companies might face imprisonment between 1-4 years in case of recording, transferring, dispersing, receipt or non-destruction of data against the laws.
When the Law enters into effect, it will introduce fundamental changes to current practices which companies adopt with personal data. It will completely affect company’s organizational procedures for collecting, storing, searching, disclosing, and, most importantly, transferring personal data overseas.
This will be important especially for companies that:
The Law defines personal data as "any information relating to an identified or identifiable natural person”. This means any data which relates to a living individual who can be identified from those data will fall within the definition of personal data.
In general personal data would include:
Definition of identifiable natural person will need to be provided in due course by the DP Board. We believe that DP Board and the Turkish legislators will mainly adopt the concept of personal data as defined by the EU practice and in this respect EU Article 29 Working Party document will play an important role for this purpose.
Under the Law sensitive personal data relates to:
Categorization of outfit and clothing as sensitive data is rather unique for Turkey and is mainly due to historical reasons. Apart from that definition of sensitive data is similar to the approach of the Directive.
The processing of data is very broadly defined in the Law and applies to any operation or set of operations on the data, including, among other things:
However, processing of data in that sense is covered by the Law only if it is partially or entirely automated or otherwise the data is processed as part of a data recording / filing system.
The Law refers to "data controllers" as a natural or legal person who, determines the purposes for which, and the manner in which any personal data are, or are to be, processed and is responsible for the configuration and management of data filing system.
Although the definition lacks specific reference to public authority, agency or any other body as opposed to the Directive, both the reasoning of the Law and the interpretation of it in its entirety, leaves no doubt that public authorities, agencies or any other bodies will be subject to the Law.
Definition of “data processor” is also similar to the one in the Directive and states that data processor is a natural or legal person authorized by the data controller and processes personal data on behalf of the data controller.
An important variation from the Directive is that under the Law, data processor is jointly responsible with data controller for safekeeping of the processed data. This is important especially for outsourcing of data processing. In this respect, both data processor and data controller are held responsible for duties set forth in the Law.
Before personal data can be processed, either the data subject must give his consent to processing, or, if consent is not obtained, the processing must be necessary for certain specified purposes as set forth in the Law.
Under Turkish law, consent must be explicit consent and this requirement is applicable for all types of personal data. In this respect, Turkish law does not make any distinction between sensitive and non-sensitive personal data, and obliges, in principle, the data controller to have explicit consent of the data subject before processing any personal data. This obligation is based on article 20 of the Turkish Constitution. In this respect, informed consent principle adopted by EU will not apply to obtaining and processing of personal data in Turkey.
The personal data may be processed without explicit consent only if:
For sensitive data, however, exemptions to the explicit consent requirement are very much limited and the Law in any event (i.e. even in the presence of explicit consent) obliges the data controller to take sufficient security measures to be later determined by the DP Board in the secondary legislation.
The Law diverges significantly from the principles of the Directive in relation to processing of sensitive personal data in the absence of explicit consent. Therefore, data controllers and data processors of the business that process sensitive data will be materially affected by the restrictions and rules of the Law.
The Law sets out a number of principles with which data controllers must comply when processing personal data. These principles form the core of the obligations of the data controller and oblige the data controller to process data:
These principles will guide the data controllers and processors for creating a suitable compliance regime at their respective organizations.
In principle explicit consent is also required for the transfer of data in the country or overseas. The exemptions listed for processing of sensitive and non-sensitive personal data without the explicit consent of the data subject are also applicable for transferring of data. But transfer of data overseas is further restricted. The Law prohibits the transfer of data to countries which do not have adequate data protection controls. In the absence of adequate data protection, personal data can only be transferred if (1) the foreign data controller undertakes in writing to ensure security of the data and (2) the DP Board’s approval for such transfer is obtained. In other words, both of these conditions must be met for due transfer of personal data overseas.
The DP Board will be the authority to determine white listed countries for the transfer of data overseas. In this respect, we believe that it can be assumed that all EU countries and countries included in the white list of EU will be safe for transfer of data.
Data controllers must comply with the data protection principles set out in the Law when sharing data.
The main risks for data controllers in any data sharing arrangement include:
In order to comply with the new regime the companies are advised to consider, in the upcoming months, to:
Please contact us should you need any assistance on any of the foregoing or have queries regarding your business or operations.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.