Turkey: Data Protection In Turkey & New Data Protection Requirements In E-Commerce

In the 21st century, thanks to the continuous technological developments, individuals, companies and governmental authorities are easily able to access an immeasurable amount of data, with a simple click. The other side of the coin is that it is technically possible to collect internet users' personal data without their consents.

Protection of personal data has a direct influence on the development of e-commerce. Individuals tend to use the internet more, if they trust that their personal data are protected and not shared with third parties. With the widespread usage of the internet and e- commerce, this situation prompted governments to adopt strict measures for the protection of personal data. In Turkey, there is no specific piece of legislation that governs the protection of personal data. In fact, data protection is a new concept in Turkish law and most people are not aware of their rights and obligations. There is a draft law on data protection (the "Draft Law"). This was prepared in 2008, but has not been enacted yet. Data protection is dealt with under the Turkish Constitution (the " Constitution") and various laws (such as the Civil Law, the Labor Law, the Turkish Code of Obligations (the "TCO"), the Turkish Penal Code (the " TPC"), etc.) at a high-level.

The Constitution stipulates that every individual has the right to request protection of his/her personal data. This right entitles individuals to be informed of their personal data, to have access to their data, request revision or removal of their data and learn whether their data is used for right purposes. In addition, an individual's personal data may only be processed upon his/her explicit consent.

None of the laws noted above explicitly describe what should be considered as "personal data". However, according to the criminal law chambers of the Court of Appeals, a "personal data" can be any type of information that identifies an individual and distinguishes him/her from other individuals in the society. According to the Court of Appeals, identity information (such as identity number, name, surname, date and place of birth, parents' name, etc.), place of residence, criminal records, occupation, level of education, personal phone number, e-mail address, blood type, marital status, fingerprints, DNA, biological samples such as hair, nail and saliva, sexual or religious preferences, medical records, ethnical origin, philosophical, religious or political view, memberships with trade unions, are amongst an individual's personal data.1 If the data is considered to be anonymous or easily accessible, that data may not be classified as personal data.

Personal data protection is also regulated by the TPC. According to Article 135 of the TPC, if a person illegally records personal data, he/she will be sentenced to imprisonment for one to three years. Similarly, Article 136 provides that a person who illegally obtains personal data or shares them with or spreads them to third parties will be sentenced to imprisonment for two to four years. If the offender of the crime is a legal entity, then such legal entity will be subject to security measures (e.g. return of monetary benefits that are gained through the crime). In addition, from a civil law point of view, these actions are considered as a breach of personal rights and the offender (an individual or a legal entity) may be requested to indemnify damages of the person whose personal rights are violated.

The Labor Law is another piece of legislation that regulates the protection of personal data. Under Article 75 of the Labor Law, an employer must keep personal files for each employee. These files must contain information in relation to the employment relationship such as employees' position in the company, salaries, benefits, number of used/unused annual leave days, etc. Pursuant to this requirement, the files may contain personal data of employees. The same article states that an employer must act in good faith in compliance with the Labor Law and other relevant legislation while using employees' personal information, and keep them confidential for the employees' benefit. Similarly, Article 419 of the TCO states that an employer may use the personal data of an employee, only if it is required for the performance of a contract or in order to determine whether or not the employee is inclined to his/her duty.

Protection of Personal Data under the Law on Electronic Commerce2

The long-awaited Law on Electronic Commerce (the " E-Commerce Law") entered into force on 1 May 2015. The E-Commerce Law's primary purpose is to regulate the fundamentals of electronic commerce and to protect the privacy of individuals who carry out transactions electronically. The E-Commerce Law defines "electronic commerce" as the activities and transactions that occur in the electronic environment without any face to face communication. The E-Commerce Law primarily regulates the obligations of individuals and legal entities that provide electronic commerce services and electronic commerce environment for third parties' financial and commercial activities.

Under Article 10 of the E-Commerce Law, service providers and intermediary service providers must protect and preserve the individuals or legal entities' personal data obtained within the scope of electronic commerce activities. They are not entitled to transmit such personal data to any other third parties without the consent of individuals or legal entities. Although the E-Commerce Law governs the protection of personal data, it does not contain any provision on how this protection mechanism should be enforced. Currently, it is possible to say that the provisions related to data protection under the E-Commerce Law are not sufficient to provide a real protection.

The implementation of the E-Commerce Law will be addressed by secondary legislation to be prepared by the Ministry of Customs and Trade. As of the date of this bulletin, there is no draft regulation detailing the E-Commerce Law's provisions on data protection, except for the Regulation on Commercial Communication and Commercial Electronic Messages, which provides that in order for personal data to be shared with third parties and/or be processed or used for other purposes, the relevant individuals' consent must be obtained.

Draft Law on the Protection of Personal Data

Turkey, as a member of the Council of Europe has signed the Convention for the Protection of Individuals with Regard to Automatic Processing of Personal Data in 1981, but the Turkish Parliament has not yet ratified this convention. Turkey does not currently have a specific data protection law in force. The Turkish Parliament is working on the Draft Law, which has been in draft form since 2008. The Draft Law was prepared to ensure compliance with the European Union's data protection policies. According to the Draft Law, any personal data including information on an individual's religion, political view, ethnical origin, membership to an association or a labor union, health and private life and criminal penalties cannot be kept, without such individual's written consent. Under the Draft Law, in order to transmit an individual's personal data to a foreign country, this individual's prior written consent must be obtained.

The Draft Law stipulates the establishment of a "Data Protection Board" (as a public organization with administrative and financial autonomy) to regulate data protection related matters. The Data Protection Board will be the highest authority, authorized to render decisions on whether there is violation of personal rights linked with data protection. It will also be empowered to prepare regulatory procedures regarding the processing of personal data. Following its establishment, the Data Protection Board will set up a data recording registry. Individuals and legal entities processing personal data will be registered with this registry before forming a data-file.

According to the Draft Law, personal data -following receipt of its owner's consent- can be transmitted to foreign countries, only if there is an equivalent legislation on data protection in the relevant foreign country. If there is no such protective legislation in the foreign country, the Data Protection Board's approval will be required to transmit personal data. Since the Draft Law is not yet enacted, as of today, there is no governmental authority in Turkey to deal with such matters.

Footnotes

1 Court of Appeals, 12th Criminal Law Chamber, E. 2013/10672, K.2013/15772, T. 10.06.2013.

2 Please see our e-bulletin dated November 2014, titled "Overview of the New Electronic Commerce" for further information on the Law on Electronic Commerce.

© Kolcuoğlu Demirkan Koçaklı Attorneys at Law 2015

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
Gökçe İldiri
 
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”

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
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 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
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.