Banks and banking transactions take an important place in finance. With regard to provide the protection of confidence and credibility, the protection of bank customer secrets has become very important. Obligation of secrecy is based on the principal of protection of individuals private life by Article 20 of Turkish Constitution.
The protection of bank customer secrets has been guaranteed by Criminal Law, Banking Law and Turkish Central Bank Law. Moreover, there is a new draft of Law on Customer, Trade and Banking Secrets which determines customer, bank and trade secrets and their exceptions.
Criminal liability of banks and bank employees for breach of
confidentiality concerning customer secrets is regulated in Banking
Law and Criminal Law.
Customer secret has been defined in Draft of Law on Commercial, Banking and Customer Privacy as "secrets consisting from informations and documents which have been obtained by corporates and which concern financial, credit and cash positions of customers." In this regard, all information obtained before and after conclusion of a banking contract, asset situation of customer, guarantee letters, sureties, bills of account and other personal information such as identification data, address and phone numbers are regarded as customer secrets.
All persons or legal entities to which a bank provides services can be regarded as bank customer according to the Article 76 of Banking Law. Accordingly, anyone who makes only a payment to the bank counter is regarded as a bank customer even though he/she does not have an account in related bank.
According to Article 73/3 of Banking Law, the customers secrets shall be obtained by bank officers or other employees because of their duties and also by third parties. Responsible individuals have been stated in the law's preamble as bank board members, bank managers, notaries, public officers, debt enforcement officers, inspectors, sworn auditors, independent auditors, other institutions authorized by laws and obtained customer secrets.
For incurrence of offense, the customer secrets shall be shared or explained to unauthorized persons or used for responsible individual's own or other's benefit. A verbal transfer of customer secrets is also regarded as offense. Occur of a damage is not required.
Principally, mental element of this offense is general intention. However, according to Article 159/2 of Banking Law, mental element of the major offense "disclosure of customer secrets on the purpose of own or others benefit" is motive. The offense cannot occur, if a bank employee declares a customer secret negligently. For example, a bank employee may not be sentenced in case that her/his explanations are heard or seen by third persons incidentally.
Article 159 of the Banking Law and Article 239 of Criminal Code
regulate the disclosure of customer secrets. Anyone who infringes
the prohibition of breach bank customer secrets shall be sentenced
to prison from one year to three years and to fine from thousand to
two thousand days. (Article 159, Banking Law) Differently from the
Criminal Code, no complaint is required for prosecution because of
Moreover, Article 239 of Criminal Code provides that anyone who declares banking, trade or customer secrets obtained due to his/her duties or occupation, shall be sentenced to prison from one year to three years and to fine to five thousand days upon complaint.
Furthermore, the aggrieved party may file a suit for damages against the bank, since the bank is also liable as employer for the tortuous acts of its employees within the scope of Obligations Law Article 49, 66 and 116. In this case, the bank may recourse to the responsible employee which declared the customer secret.
Limits of Secrecy Obligation
The secrecy obligation of banks is not restricted. There are
exceptions of this obligation, such as Article 73 of Banking Law.
According to this law, bank associates, board members, employees
may declare customer information to the credit institutions and
finance institutions. Also the consent of customer to declare
informations is an exception of this prohibition.
Furthermore, the code draft on Banking, Commercial and Customer Secrets defines the terms "customer, banking and commercial secret" and regulates also the exceptions of confidentiality. According to its Article 3, the cases in which a customer agrees the disclosure of information, or a legal obligation shall be fulfilled, are not regarded as disclosure of customer secrets.
Articles 4 and 5 of this code draft regulate the cases in which customer secrets may and must be declared.
Accordingly, secrets in parliamentary inquiries sessions of which are managed confidential, in requirements and prosecutions conducted by prosecutors and courts, during the audits made in the name of Treasury, in cases which are provided by other laws may be declared. (Article 4 of Code Draft)
Furthermore, banking, customer and commercial secrets must be declared to following authorities:
Grand National Assembly of Turkey,
Public prosecution offices.
Also in financial and administrative audits, provided that the
information is related to the duty, and limited to purpose of the
audit and that the disclosure of such information is an
This law draft is discussed in the parliament commission. Despite its provisions concerning the secrecy, probability of companies' damages due to disclosure of corporate information is especially criticized by companies and some institutions and set up of an indemnification clause for corporates' damages is requested from the council.
However, it is evident that the protection of confidence in banking transactions is provided by laws in Turkish Law System. Moreover, if the above mentioned law draft is enacted, the terms and regulations concerning trade, banking and customer secrets and also limits of the obligation of secrecy of bank customers' information will be clarified and determined.
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.