About The Turkish Law On Protection Of Personal Data

 ADMD Law Office
Ali Yurtsever & Efe Can Akıncı

I. OVERVIEW

The Law on the Protection of Personal Data numbered 6698 published at the Legislative Journal dated April 7, 2016 and No. 29677 (the Law) has come into force at the date of its publication (Validation of Articles 8, 9, 11, 13, 14, 15, 16, 17 and 18 was postponed for 6 months after the publication date and such articles have since entered into force as of October 7, 2016).

This Law sets forth certain new liabilities for the data supervisors who process the received personal data, and also, according to Article 31 Sub article 3 of the Law, data supervisors are required to make sure that the personal data that was processed prior to the publication of this Law complies with the provisions of this Law within 2 years from the date of publication (and therefore, until April 7, 2018).

II. DEFINITION OF PERSONAL DATA

In order to review the Law of Protection of the Personal Data No. 6698, terminology used for personal data shall be inspected. Article 2 of the Law defines the personal data as “Any kind of information that belongs to a natural person (consumer, client, agency owner, company partner, employee, etc.) whose identity is determined or may be determined”. In this respect the below listed examples of data may be deemed as personal data:

• ID Number
• ID and Passport info
• Residency/Contact info (phone number, address, e-mail address)
• Image/ voice recording/photograph
• Credit card info/ Bank account number
• Info required for visa applications

Additionally, as per Article 6, race, ethnicity, political view, philosophical belief, religion, sect or other beliefs, dress and appearance, association and foundation memberships, health condition, sexual life, info regarding the criminal sentences and security measures, criminal records, biometric and genetic information of an individual shall also be considered as ‘private personal data’.

According to Article 4, personal data may only be processed if it is stored in compliance with the law and the good faith principle, and is stored correctly and up to date, with a motive of clear, legal and specific purposes, relating to the purpose of data processing, in a limited and proportional manner and for limited duration.

Whereas Articles 5 and 6 of the Law restricts the processing of personal data and private personal data without the express consent of the data provider.

Furthermore, Articles 8 and 9 of the Law restricts the transfer of personal data to third parties and/or to abroad (to jurisdictions out of Turkey) without the express consent of the data provider.

III. DATA SUPERVISORS AND THEIR LIABILITIES

According to the Law, persons and/or entities that store and designates the purpose and facilities of processing of personal data shall be considered as “data supervisors” and legal or natural persons that processes the data in the name of the data supervisor by the authority of the data supervisor shall be deemed as “data processors”.

Therefore natural and/or legal persons that gather, keep, process and preserve such data belonging to their customers and/or clients and/or other people in their own databases shall all be considered as “data supervisors”.

Liabilities of the data supervisors regarding the data security are set forth in sub article 1 of Article 12 of the Law. Accordingly, data supervisors are obliged to prevent the illegal processing of and unauthorized access to personal data and they need to take all necessary technical and administrative measures to provide the proper security level of the kept data.

In addition to the above, Article 10 of the Law sets forth that data supervisors shall be liable to provide the relative person (data provider) the following information:

• Title of the Data Supervisor (if exists identity and address information of the data keeper)
• Purpose of Data Processing
• To whom and with what purpose the data can be transferred to
• Legal reason and method of the data gathering
• Other liabilities regarding the rights of individuals mentioned in the Article 11

As it is mentioned above and in addition to the liabilities set forth at Article 10 of the Law, the data supervisors are also obliged to fulfil the liabilities set forth in Article 11 of the Law. Pursuant to Article 11, relevant persons who submit their personal data to data supervisors shall have the right to submit a request to the data supervisors in order to; “get information whether their data is processed or not, demand information if its processed, find out the purpose of the data process and whether the information given is used accordingly to its purpose by applying to data keepers, learn about the third persons who nationally/internationally receives the data, demand correction if the processed information is wrong or missing, request the extinguishment/deletion or removal of the data if it actualizes the conditions, demanding some operations to be notified to third person who will receive the information, object if the processed information created results against himself/herself and claim damages in case of illegal data processing”.

IV. DATA SUPERVISORS REGISTRY

In addition to the liabilities of the data supervisors, Article 16 also sets forth that for every natural or legal person that is considered as a data supervisor shall be required to register to the Data Supervisors Registry which shall be established by the Institution of Personal Data Protection Presidency.

Article 18 sub article ‘c’ sets forth an administrative fine between TRL 20,000 and TRL 1,000,000 for the data supervisors that do not comply with this registration requirement in due time.

However, since the aforementioned registry is not yet established (as of December 22, 2016 when this information note is drafted), such registration obligation is not currently in force for data supervisors. An additional regulation concerning this matter is expected to be issued within the following months and procedures and principles regarding the registration are expected to be defined therein.

V. BREACH OF LIABILITIES AND SANCTIONS

According to Article 17 of the Law, Articles between 135 and 140 of the Turkish Criminal Code No. 5237 shall continue to be applied for crimes regarding personal data (crimes of unauthorized recording of personal data, illegal disclosing or acquisition of personal data and failure to dispose of the personal data).

Article 7 sets forth that data supervisors who fail to delete, dispose or make the personal data anonymous after the cause of data processing disappears and/or the data provider demands for such actions, shall be subject to legal proceedings as per Article 138 of Law No 5237.

In addition to the related Articles of Turkish Criminal Code, data supervisors who are found to be in breach of the relevant liabilities set forth in the Law shall also be subject to administrative fines between TRL 5,000 and TRL 1,000,000.

The Personal Data Protection Board is authorized to supervise the liabilities and administer the sanctions set forth by the Law.

VI. BOARD OF PERSONAL DATA PROTECTION AND ITS DUTIES

Pursuant to Articles 19 and 20 of the Law, an Institution of Personal Data Protection shall be established which shall be directly attached to the Prime Minister’s Office.

This Institution, of which it’s duties are designated by the Law and which is established in conformity with the European Councils Agreement of Protection of Individuals in the Course of Automatic Data Processing numbered 108 and EU’s Data Protection Directive numbered 95/45/EC, shall be an autonomous institutions with regards to its financial and administrative actions. This Institution shall have two main bodies as the ‘Board’ and ‘Presidency’ of the Personal Data Protection Institution.

Duties of the Board are as noted below:

• Keeping the Registry of Data Keepers
• Applying the administrative sanctions mentioned in the law numbered 6698
• Defining the necessary precautions for processing the Private Personal Data
• Making the decisions for the complaints about the breach of rights regarding the personal data protection
• Examining the legality of the processing of the personal data upon a complaint or by itself and take the required measures if necessary
• Rulemaking about the duties of the Board and the running of the institution

VII. NOTEWORTHY ISSUES TO BE CONSIDERED BY THE LIABLE PARTIES

As noted above, personal data to be processed and saved after October 7, 2016 shall be processed and kept in accordance with the provisions of this Law.

Furthermore, the data that was obtained, saved and processed before the publication date of the Law, April 7, 2016, shall comply with the provisions of this Law by no later than April 7, .2018.

It should also be noted that that all such liabilities within the scope of this Law should be considered together with the liabilities set forth by the Law of E-Commerce No. 6563 and mutual solutions must be produced to satisfy the liabilities of both such laws. Although the liabilities of the both laws are similar in certain aspects, other sections of the laws such as the competent authorities, official permits and audits differ from each other. Due to such differences between the two laws, one single act may cause two different legal breaches and may be sanctioned separately.

To avoid such possible violations and the implementations of sanctions, those who are deemed as data supervisors should take certain precautions for the purposes. In this respect, it may be ideal for the data supervisors to sign a new and updated Protection of Personal Data Agreement (or a Confidentiality Agreement) with their data providers (clients, customers, members etc.) which complies with the new rights and obligations of the Law.

Data supervisors should also consider to draft and send a notice to their old data providers who provided their personal data before October 7, 2016, informing them on the new rights and obligations implemented with the new Law (this notification should also inform the data providers about their right to demand the deletion or anonymization of their data).

Furthermore, it may also be recommended for data supervisors to inform and educate their relevant personnel and executives regarding these new rights and obligations and obtain additional letters of commitments along with their current or to be executed employment contracts to minimize future the risk of violations.