Turkey: Long-Expected Transition In Data Protection Law

Last Updated: 20 March 2013
Article by İrem Cansu Atikcan

Information is power and significantly valuable for both the proprietors and the potential receivers. Especially within the last decade, information technologies have enabled fast and easy ways to access, collect, process, and transfer personal data. This feasibility, which is a blessing and at the same time a curse, also creates ways for data privacy breaches. Businesses operating in sectors, which are capable of and facilitating easy collection, disclosure, transfer and share of data such as internet technologies, or sectors which are highly dependent on (sensitive) personal data.

In Turkey, still there is no specific legislation on data protection. The Government's Draft Law on Data Protection, which has been in the public agenda since 2004, has been re-written and sent to the Turkish Parliament for the legislating process ("Draft Law"). The relevant circles are optimistic that through the end of this year or early next year, Turkey will finally have a data protection law. As of today, this area is governed by provisions of several general laws. The current legal framework and the likely transition on data protection in Turkey are discussed below:

The Current Legal Framework

First of all, Turkey is a member state of the Universal Declaration of Human Rights, of which Article 12 clearly stipulates that "No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks" and has been a signatory to the "Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data" since 1981, however Turkey has not yet ratified it.

Secondly, the Turkish Constitution, since the amendment made in 2010 following the referendum, clearly stipulates the protection of personal rights under the title "Privacy and Protection of Private Life" (Articles 20 and 22) specifying the right to private life and privacy of communication. Article 20 stipulates that the right to request the protection of personal data includes; (a) being informed of, (b) having access to, and (c) requesting the correction and deletion of his/her personal data and (d) to be informed whether these are used in consistency with envisaged objectives. In addition, processing personal data should be either allowed by laws or by the person's own consent.

Thirdly, the Turkish Civil Code (Articles 23 to 25) contains provisions that protect personal rights and privacy of personal information. These provisions stipulate that (i) one whose personal rights are violated can ask for protection from the Court and request from the Court to cease such violation, (ii) all violations of personal rights are to be deemed illegal unless the person whose personal rights are violated consents to such violation or the violation can be justified with a superior private or public interest or the usage of an authority arising from a law, etc.

Furthermore, the Turkish Criminal Code stipulates sanctions regarding the unlawful acts and actions violating protection of personal data. Therefore unlawful recording, transmission or obtaining of personal data is considered as criminal acts punishable by imprisonment. Article 135 imposes imprisonment of 6 months to 3 years for the unlawful recording (obtaining) of data, which is recording data regarding sensitive data such as political, religious views, racial or ethnic origin. Article 136 deals with illegal transmission or obtaining of personal data and imposes imprisonment of 1 to 4 years for the illegal recording (obtaining) and transmitting of data, and, Article 138 deals with data retention and states that upon expiry of the time period specified by law to retain such data, such data must be deleted or destroyed and failure to comply shall be punished by imprisonment of 6 months to 1 year. Although the meaning of "unlawful" or "illegal" are not clearly defined in the Code, it is deemed as obtaining or delivery of personal data without any consent or permission.

The Draft Law

As a part of Turkey's harmonisation to EU's acquis communautaire, the Draft Law has been prepared in line with the EU Data Protection Directive No.95/46/EC and Commission Decision 2001/497/EC of 15 June 2001. It is fair to state that the Draft Law is aligned with the EU Legislation. However, the ones who prepared the Draft Law seem to have preferred not to the reflect the actual issues being discussed in the EU which are likely to be stipulated under EU Data Protection Regulation. On January 2012, the Commission proposed a new set of single rules on data protection which would update the current DP Law and give data subjects more control over their data.

The Draft Law is intended to act as a catalyst for change in the way in which data is processed and managed. Besides, the aim is to govern and regulate the protection of personal data and preserve the fundamental right of privacy, in general terms it permits personal data to be collected to meet legal obligations, where the data subject provides consent or if the collection of data is necessary and in the public interest. The broad principles of the Draft Law without going into specific detail is to impose strict conditions in processing data, ensuring that the stored data is obtained and processed fairly and lawfully, is accurate and up-to-date, and where necessary corrected or erased. Furthermore, the Draft Law states that data should be anonymised or destroyed when the legal justification no longer applies and safeguards sensitive personal data which reveals racial origin, political opinions etc.

In accordance with the Draft Law personal data can only be processed subject to the explicit consent of the concerned person and it can be transferred to a foreign country upon request provided that there is an equivalent and efficient protection in the relevant country or if consent has been provided. Data may only be processed if the data subject has given his consent, it also lists exceptions to this rule whereby prior consent is not required, such as, if there is a valid and/or lawful reason to process the data listed, or, if it is necessary for the performance of a contract to which the data subject is a party. Data processors will be under a duty to inform data subjects of their identity and give notice of the intended use of personal data, providing details, amongst others, of the purpose, method and consequences of such data processing. The proposals are simply increasing the responsibility of data controllers, bringing clear rules related to consent requirements, providing the data subjects a "right to be forgotten" and applying the EU rules even when the data is processed outside the EU. These single set of rules will create a harmony all over Europe and will presumably guarantee a better enforcement of data protection rules.

Other Recent Developments

Finally and most recently, the Regulation on Data Protection and Protection of Privacy in Electronic Communication Sector was released on July 24, 2012 (Official Gazette No. 28363). Information and Communication Technologies Authority's Regulation illustrates the application of data protection principles set out under Article 20 of the Constitution, which is also quite recently integrated as one of the constitutional principles via September 12, 2012 constitutional referendum. These data protection principles are mainly comprehensive instruction/information for data proprietors prior their consent, enabling withdrawal of consent via same methods or even by simpler means and this withdrawal should be free. Data should be processed within legal boundaries and good faith, as well as limited with the purpose of obtaining such data. Furthermore, data should be correct and the proprietors should be able to update any outdated or incorrect data.

In light of the foregoing, in close future Turkey is expected to have a comprehensive law on data protection. This improvement will be significant both for the EU harmonization process as well as for the multinational businesses operating both in Turkey and EU; who will align their operations with this new set of data protection rules in Turkey.

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.

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