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
- breach of notification obligation of the data controller to the data subject when processing the data
- breach of duty to ensure security of data
- failure to fulfill the decisions of the DP Board in relation to the remedies to be performed as a result of a complaint by the data subject or an investigation initiated by the DP Board per se or
- failure to comply with the requirements for the registration with and notification to the Registry.
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:
- Collect and process data as an essential part of their business model (e-commerce companies, service companies, retailers, loyalty program owners, and alike)
- Process and store sensitive data (like hospitals, airway companies, hotels, etc.)
- Transfer data overseas (outsourcing, centralization of group company data, transfer of data to manufacturers, etc.)
What kind of data is considered within the scope of the Law?
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:
- Personal details, such as name, surname, ID number, Social Security Number, passport number, curriculum vitae, email address
- Family and lifestyle details
- Education and training
- Employment details
- Financial details
- Contractual details (for example, goods and services to or by a data subject).
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.
Sensitive personal data
Under the Law sensitive personal data relates to:
- Racial or ethnic origin
- Political opinions
- Religious and philosophical beliefs
- Outfit and clothing
- Association, foundation or trade union membership
- Health or sex life
- Criminal history and data related to security measures
- Biometric and genetic data (including voice).
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.
Processing of data
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:
- Adaptation or alteration
- Acquisition (taking over)
- Dissemination or otherwise making available
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.
Who is subject to data protection obligations?
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.
What type of consent is needed from the data subject?
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.
Exemptions to the requirement of "explicit consent"
The personal data may be processed without explicit consent only if:
- Processing is explicitly foreseen in the laws
- Processing is necessary for the vital interests of the data subject or a third person where the data subject is not in a position to express his consent
- Processing of personal data of contracting parties is necessary directly due to conclusion or performance of a contract
- Processing must be essential for the data controller in order fulfill his legal obligations
- Personal data is made public by the data subject
- Processing is essential for the establishment, exercise or protection of a right
- Processing is required for the legitimate interest of the data controller, provided that fundamental rights and freedoms of the data subject are not hindered.
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 sensitive personal data, except for data regarding health and sex life, may be processed without explicit consent only if processing is explicitly foreseen in the laws;
- The sensitive personal data regarding health and sex life may be processed without explicit consent only if processing is required for the protection of public health, preventive medicine, medical diagnosis, carrying out treatment and health care services, planning or management of health related services or their financing, to the extent such processing is carried out by persons or authorized institutions or establishments subject to professional secrecy duties.
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.
What are the main principles applicable to data processing?
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:
- lawfully and in compliance with the principle of honesty
- ensuring that all data held is accurate and, where necessary, kept up to date
- only for specified, explicit and legitimate purposes
- only to the extent that it is adequate, relevant and not excessive in relation to the purposes for which it is collected and further processed and
- store such data only for a period that is permitted by the law or necessary for the purposes for which the data was processed.
These principles will guide the data controllers and processors for creating a suitable compliance regime at their respective organizations.
What are the restrictions on data sharing?
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:
- Failing to notify individuals about how their data will be processed
- Collecting personal data for one purpose and later sharing or using it for another incompatible purpose without the data subject's knowledge or consent
- Failing to maintain the integrity and security of the data.
What shall be the immediate action plan?
In order to comply with the new regime the companies are advised to consider, in the upcoming months, to:
- build a team for the due management of the compliance process (preferably the team must include one legal advisor and one IT expert and depending the size of the company a risk manager and an internal auditor can be added to the team)
- conduct an audit in relation to data processing activities and compliance requirements thereunder
- determine group policies for data processing intra-group and out of group, especially for international organizations
- appoint an in-house data protection officer or compliance officer, as the representative of the data controller and determining powers and duties of such person
- reorganize the company organization chart
- establish the contractual basis for the relationship between the third party data processor and the data controller by determining mutual rights and duties of the parties thereunder
- determine whether data is shared with third parties or transferred to overseas and if so identify applicable duties and liabilities associated with such activities
- establish necessary technical and legal infrastructure for data security
- review all contracts for data processing and data sharing activities, including but not limited to application forms used by the company for different purposes, such as client CRM, employment etc, and revising such in light with the compliance program
- train executives as well as operational teams who act or may be acting as data processors.
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.