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.

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.

Authors
Similar Articles
Relevancy Powered by MondaqAI
Gün + Partners
BTS & Partners
 
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”

Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Gün + Partners
BTS & Partners
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
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