New Prohibition and Data Protection Concerns
An emerging country with a big appetite for development, Turkey has made many legislative changes over the last decade.
Turkey has introduced a Law on the Regulation of Electronic Commerce[1] ("Law") which prohibits companies from sending informational marketing SMSs to consumers; however, in practice, the consumers still cannot opt out of receiving such SMSs because there is no legislation in Turkey regarding data protection. Companies continue to freely use consumers' information for commercial purposes. This has triggered the discussion about new data protection legislation.
Efforts to Implement New Legislation
Considering the lack of data protection in Turkey, efforts have been spent to enact a law on data protection; however it is still in progress.
Turkey's long journey to establish this legislation began in 1981 with the execution of the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data[2] ("Convention") in January 28, 1981. Contrary to all contracting European Union ("EU") states, Turkey unfortunately has not adapted its local laws accordingly.
Turning to EU's Legal Background and the Forthcoming Regulation
The EU expends a lot of effort to protect personal data under a solid legal framework. One of the most explicit examples of this is that the EU celebrated the 9th anniversary of the European Data Protection Day on January 2015.
The Convention requires the contracting states to enact a legislation regarding the automatic processing of personal data. The European Commission has enacted Directive 95/46/EC on the Protection of Individuals with Regard to the Processing of Personal Data and On the Free Movement of Such Data[3] ("Directive") in 1995 which regulates the processing of personal data within the European Union.
The Directive regulates a term called the controller of the data file ("Controller"). Controller means the natural or legal person, public authority, agency or any other body who is competent according to the national law to decide what should be the purpose of the automated data file, which categories of personal data should be stored, and which operations should be applied to them. According to the Directive, the Controller is liable to ensure the legitimate use of gathered personal data. The subject person, whose personal information is to be used, must be informed prior to the disclosure of his/her personal data to any third parties for the purposes of direct marketing, and must be expressly offered the right to object to such disclosures.
The Organization for Economic Cooperation and Development ("OECD") has also played a vital role in private data protection since the mid-70s. In 1980, OECD issued the Guidelines on the Protection of Privacy and Transborder Flows of Personal Data,[4] which introduced the basic principles of national and international application. The guidelines were updated in 2013.[5] The National Principles within the guidelines are listed as: (i) collection limitation, (ii) data quality, (iii) purpose specification, (iv) use limitation, (v) security safeguards, (vi) openness, (vii) individual participation, and (viii) accountability. The International Principles regulate the free flow of personal data between the member states and the legitimate restrictions on the same. The guidelines also provide for Controllers to be held accountable. Member states implement the OECD guidelines in order to implement the principles in their national legislatures and were incorporated in the Directive. In addition, non-member states may look to the recommendations of OECD as a model for their legislation.
In January 25, 2012, the European Commission proposed a draft European General Data Protection Regulation ("Regulation") which is contemplated to supersede the Directive by covering issues such as (i) social network and (ii) cloud computing that the Directive did not sufficiently cover.
According to the Regulation, a company must seek explicit consent from the persons whose data is being used, before gathering the personal data. Additionally, independent Data Protection Officers ("Officers") must be appointed by multi-national companies, who will be under the legal obligation to notify the Supervisory Authority without any delay in case of any actions. One more improvement is that it will also apply to organizations based outside the EU that process the personal data of EU residents. Following the conclusion of negotiations, this Regulation is expected to be finalized in 2015 or 2016.
What about the US and UK?
In the United Kingdom ("UK"), the Data Protection Act of 1998[6] ("Act") is the main legal regulation, which superseded the Data Protection Act of 1984 and was enacted to align with the Directive in respect to data protection. The provisions of the Act are very similar to the provisions of the Directive; however it has a broader meaning and interpretation of the term "personal data." Act being the main legislation piece in the UK for data protection, The Privacy and Electronic Communications (EC Directive) Regulations 2003[7], which regulates the transmission of all electronic communications such as email or SMS mobile phone messages, altered requirement of consent. Consent must now to be given on an "opt in" basis, meaning that it is unlawful to communicate for marketing purposes without prior consent of the relevant person if no relationship has occurred between the service provider and the individual before.
Unlike the EU and UK, the United States ("US") does not have a particular law on the protection of data. Nevertheless, the legislative framework includes numerous provisions within laws and regulations etc. at both federal and state levels. For example, there is Gramm-Leach-Bliley Act of 1999 for financial service regulators, Health and Human Insurance Portability and Accountability Act of 1996 for health-care providers, and the Electronic Communications Privacy Act and/or the Computer Fraud and Abuse Act for electronic communications. The term "personally identifiable information" ("PII"), is used to describe personal data in the US, and according to some acts or regulations etc. it is directly or indirectly prohibited for organizations to retain the PII of individuals provided that a prior notice regarding how it is to be used is provided to the individuals. According to the US legal doctrine, gathering and using PII without any notification or any legal justification may also be considered unfair competition between companies.
Current Situation in Turkey
Although Article 20 of the Constitution[8] of Turkey and the Regulation on the Process of Personal Data and Protection of Its Privacy in the Electronic Communication Sector[9] provide the right of protection of personal data, without a principal law regarding e-commerce, the new provisions will always be a patch and there wıll be no actual chance to enforce the protection of the basic personal data.
In Turkey, there have been four draft laws to date on data protection, the latest of which was issued in 2014. A Draft Law on the Protection of Personal Data[10], is still expected to become a law and is aligned closely with the Directive. As the EU has very strict rules and policies for the states/countries which have not adopted or implied a basic data protection legislation, it is very difficult for Turkish businesses to provide services to EU consumers.
The reason behind the delay for enactment of a new legislation on data protection is the fear of interference in Turkish business life. However, in the absence of a principle law, it continues to harm the trade between especially EU and Turkey and also Turkey's trade with UK and US because Turkey is considered to have insecure data protection.
The new draft legislation must be finalized as soon as possible and concrete provisions about data protection must come into force so that the legal grounds for data protection will be compatible with US and EU legislation.
[1] Law on the Regulation of Electronic Commerce ("Law") numbered 6563 and dated October 23, 2014
[4] http://www.oecd.org/sti/ieconomy/oecdguidelinesontheprotectionofprivacyandtransborderflowsofpersonaldata.htm#part1
[8] Constitution of Turkey dated November 7, 1982, numbered 2709 and published in the Official Gazette dated November 9, 1982 and numbered 17863 (Repeated)
[9] Regulation on the Process of Personal Data and Protection of Its Privacy in the Electronic Communication Sector published in the Official Gazette dated July 24, 2012 and numbered 28367.
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