Turkey: The EU General Data Protection Regulation and the Turkish Personal Data Protection Law

Last Updated: 11 August 2016
Practice Guide by Deris IP Attorneys

The EU Regulation 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing of Directive 95/46/EC has been published on the Official Journal of the European Union on May 04, 2016.

Many companies were already in compliance with the Data Protection Rules brought by the Directive. However, the Regulation introduces new rules and regulations to the Data Protection ecosystem and it is therefore important to look into the changes of the General Data Protection Regulation (GDPR).

In the meantime, Turkey enacted The Law on Protection of Personal Data, which has entered into force as of April 07, 2016. The Law on Protection of Personal Data has been prepared mainly in line with the Directive 95/46/EC instead of the GDPR, and accordingly is being criticized for not benefiting from the tools and grants that were introduced by the GDPR.

The Main Changes Introduced by the GDPR:

a) Harmonization of the EU Countries:

The EU regulation will provide the harmonization of data protection between the EU Countries. The GDPR will be directly applied to the member states as of May 25, 2018.

The effect of this harmonization shows up in the “One stop shop” application for companies who are active in more than one member state. The companies are able to work with only one Lead Data Protection Authority if they are located in more than one member state.

Prior to this rule, data subjects were requested to work only with the Authority of the country in which they have been operating. This had caused the data subject to receive inconsistent decisions from the different Authorities on the same cases, as each Authority has its own approach and area of freedom. The harmonization is expected to prevent these kinds of inconsistent decisions in the long run.  

Moreover, the GDPR introduces the European Data Protection Board in place of the  Article 29 Working Party, which will be an authority of the EU and will be a legal entity. 

b) Over the Borders of the EU:

Data controllers and processors who are active within the EU but not established in the Union will be subject to the GDPR as long as they process an EU resident’s personal data in connection with good/services offered to them, or monitor the behavior of individuals within the EU .

The main rationale that lies behind this idea is to strengthen EU’s position in the global digital market competition by forcing companies outside the EU to be in compliance with the GDPR.  It has  been explicitly stated in the Press Release of the European Commission dated 12 March 2014 that “if companies outside Europe want to take advantage of the European market with more than 500 million potential customers, then they have to play by the European rules.”

c) Requirement of Notification:

In accordance with the Directive, the data controllers were required to notify the Data Protection Authorities in certain cases. The GDPR removes the requirement of notification and replaces this requirement with procedures to be conducted by the data controller.

On the other hand, Article 36 stipulates the cases where the data controller shall consult the supervisory authority. However, the data controller is no longer required to ask for permission in case of a data transfer based on standard data protection rules or binding corporate rules.

It seems that the requirement of notification is replaced with specific obligations introduced to the data processor and data controller by the GDPR. Art. 35 on “Data protection impact assessment”, Art. 46 on “Transfers subject to appropriate safeguards” and Art. 47 on “Binding corporate rules" are examples of the new obligations of the data controller and processor.

d) Right to be forgotten:

The data subject has the right to request the erasure of his/her data without undue delay.

The controller shall erase the subject data if:

  • the personal data are no longer necessary and in relation to the purpose for which they are processed,
  • the data subject withdraws consent, on which the processing was based,
  • the data subject objects to the processing and where the legitimate grounds of processing are not available,
  • the personal data have been unlawfully processed,
  • the personal data have to be erased for compliance with a legal obligation in Union or Member State law to which the controller is subject;
  • the personal data have been collected in relation to the offer of information society services

The above rights of the data subjects have been granted with the aim of empowering EU citizens, particularly teenagers, to be capable of protecting their online identity. The above rights are known by the society as “the right to be forgotten” based on the “Google Spain v AEPD and Mario Costeja González” case.

It should be kept in mind that the right to be forgotten is not an absolute right. The authorities should always strike the balance between the right to be forgotten and freedom of expression and/or information.

e) The responsibilities and obligations of the Data Controller:

The data controller shall implement appropriate technical and organizational measures to ensure and be able to demonstrate that processing is performed in accordance with this Regulation.

The recital of the GDPR rules that the controller should be responsible for the carrying-out of a data protection impact assessment to evaluate, in particular, the origin, nature, particularity and severity of that risk where processing operations are likely to result in a high risk to the rights and freedoms of natural persons.

The controller should adopt internal policies and implement measures which meet in particular the principles of data protection by design and data protection by default. In the case of a personal data breach, the controller shall without undue delay and, where feasible, not later than 72 hours after having become aware of it, notify the personal data breach to the supervisory authority.

f) Consent:

The GDPR defines the consent of the data subject in detail. Accordingly, the consent of the data subject must be freely given, specific, informed and unambiguous.

The affirmative act may be in the form of a written statement, including by electronic means, or an oral statement. The affirmative act may include ticking a box, choosing technical settings for information society services or another statement. Silence and pre-ticked boxes should not be accepted as consent.

Moreover, the consent must include all processes for which it is given and the data subject has to be sufficiently informed of the purpose of the data processing.

g) Parental consent:

The GDPR provides a specific level of protection to the personal data of children.

Article 8 of the GDPR stipulates that the processing of the personal data of a child shall be lawful where the child is at least 16 years of age. The GDPR enables countries to lower the age of children in this provision down to 13 provided that this is stipulated by the law of the member states.

Consent or authorization by the holder of parental responsibility over the child is searched where the child is under the age which is determined by the member state, i.e. 13-16.

h) International Transfers of Personal Data:

Data transfer to third countries may take place only if the conditions laid down in the GDPR are complied with by the data processor and data controller.

An international data transfer shall take place if the Commission has decided that the third country, a territory or one or more specified sectors within that third country, or the international organization in question ensures an adequate level of protection.

In the absence of a decision of the Commission, a controller or processor may transfer personal data to a third country or an international organization only if the controller or processor has provided appropriate safeguards, and on the condition that enforceable data subject rights and effective legal remedies for data subjects are available.

Moreover, a transfer of personal data should also be regarded as lawful where it is necessary to protect an interest which is essential for the data subject's or another person's vital interests, including physical integrity or life, if the data subject is incapable of giving consent.

i) Sanctions & Administrative Fines:

Data controllers who fail to fulfill their obligations will be charged to pay fines up to 10 000 000 EUR, or in the case of an undertaking, up to 2% of the total worldwide annual turnover of the preceding financial year, whichever is higher.

Infringement of the basic principles of data processing, infringement of the rights of the data subject, infringement of conditions set forth in the regulation for the transfer of data, non compliance with an administrative decision, and failure to provide access to the supervisory authority for investigation will be subject to fines up to 20 000 000 EUR, or in the case of an undertaking, up to 4 % of the total worldwide annual turnover of the preceding financial year, whichever is higher.

Conclusion:

Turkey has newly enacted the Law on Protection of Personal Data which is, as said before, mainly in line with the principles of the Directive 95/46/EC instead of the GDPR.

Considering that the GDPR introduces a new interpretation of personal data protection especially by extending the territory of the implemented law, companies in Turkey will have to prepare both for compliance with the Turkish Law on Protection of Personal Data and with the GDPR.     

This document is not intended to create an attorney-client relationship. You should not act or rely on any information in this document without first seeking legal advice. This material is intended for general information purposes only and does not constitute legal advice. If you have any specific questions on any legal matter, you should consult a professional legal services provider.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Contact the Author?
Click here to email the Author
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Other Turkey Advice Centres
Competition and Antitrust
Tax
Intellectual Property
More Advice Centers
Significant Recent Cases
Useful Resources
Data protection is commonly defined as the law designed to protect your personal information, which is collected, processed and stored by “automated” means or intended to be part of a filing system.
In January 2012, the European Commission proposed a comprehensive reform of data protection rules in the EU. On 4 May 2016, the official texts of the Regulation and the Directive have been published in the EU Official Journal in all the official languages.
Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (Text with EEA relevance)
Directive (EU) 2016/680 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and on the free movement of such data, and repealing Council Framework Decision 2008/977/JHA
The Article 29 Data Protection Working Party was set up under the Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data.
Tools
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions