Turkey: Turkish Data Protection Law Has Finally Entered Into Force: Does It Cover The Expectations?

As the EU harmonization process has gained a particular importance recently, the progress on the Personal Data Protection Draft has been accelerated accordingly. Finally the Law is published in Official Gazette number 29677 on 7 April 2016. Regarding the clause of effect; 8th, 9th, 11th, 13th, 14th, 15th, 16th, 17th and 18th Articles of the Law will be entered into force six months later, while other Articles will be effective as of the publish date. Following the execution of the "Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data" in 1981, the extent to this significant Law was an issue of concern which has been drawn up within this framework and pending for a long time, will be modified and the latest version to be ratified.

This article puts forward the improvements and exemptions as well as other articles of the Law to be amended, excluding the arrangements on the Personal Data Protection Authority as clearly as possible. The text of the Law is available here.

DEFINITIONS OF PERSONAL DATA AND PERSONAL DATA PROCESSING

Personal data is defined as "any information relating to an identified or identifiable natural person" under the Law. This covers the physical data including but not limited to the first name, surname, date and place of birth and other information such as physical, social, cultural, economic and psychological data. These subheadings may apply to the home address, vehicle plate, tax identification number, blood type and several other associated personal data.

On the other hand, processing of personal data is construed more broadly under the Law as "any operation or set of operations which is performed upon personal data, by automatic means fully or partially, or non-automatic means provided to be a part of any data storage system, through collection, recording, storage, adaptation or alteration, retrieval, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking the use thereof ".

OBJECTIVE AND SCOPE OF THE LAW

The objective of the Law is to protect the fundamental rights and freedoms of persons, and in particular their right to privacy, with respect to the processing of personal data and to set down the procedures and principles, and obligations binding upon the natural or legal persons processing such personal data.

The Law applies to the "persons whose personal data is processed and natural or legal persons processing such personal data by automatic means fully or partially, or non-automatic means provided to be a part of any data storage system".

PERSONAL DATA PROCESSING CONDITIONS

Personal data cannot be processed unless the data subject gives his/her explicit consent as per the Article 5 of the Law. However, the second clause of the same Article exhibits 7 conditions, which allow for processing of personal data without seeking data subject's explicit consent. Where any of these conditions is applicable, personal data pertaining to the data subject may be processed without the need for explicit consent of the data subject.

SPECIALLY CATEGORIZED PERSONAL DATA AND PROCESSING CONDITIONS

Article 6 of the Law defines the specially categorized personal data as "data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, dressing preferences, association or trade-union membership, health or sex life, criminal conviction and security measures as well as biometric and genetic data".

Biometric is defined as a general term referring to the computer assisted automatic systems developed to recognize physical or behavioral characteristics of the user and to identify the same. Therefore, biometric data covers all of the health information of such person as one of the physical qualities. First clause of the Article 6 indicates that genetic data is included to personal data either, which was not defined in the draft version of the Law. As per the second clause of the Article, specially categorized personal data cannot be processed unless the data subject gives his/her explicit consent. Adequate measures for processing of specially categorized personal data will be specified by the Board.

As a general rule, it is regulated that specially categorized personal data cannot be processed unless the data subject gives his/her explicit consent. On the other hand, for those that the third clause of the same Article applies, as of now it is possible to process the personal data without the explicit consent of the data subject, in the conditions the Law stipulates.

ERASURE, DESTRUCTION AND ANONYMIZATION OF THE PERSONAL DATA

The Law regulates that in the event reasons requiring the processing of the personal data disappear ex officio or upon the data subject's request, personal data will be erased, destroyed or anonymized. Article 138 of the Turkish Penal Code stipulates that those who fail to erase or anonymize such personal data will be punished.

DISCLOSURE OF THE PERSONAL DATA TO THIRD PARTIES OR TRANSMISSION TO ABROAD

The Law stipulates that personal data cannot be disclosed to third parties nor transmitted abroad without the explicit consent of the data subject as a general rule.

However this data can be disclosed to third parties without the explicit consent of the same, in case any of the conditions set under the second clause of the Article 5, and under the third clause of the Article 6 applies.

In addition to the conditions applying to the disclosure to third parties, in order for the personal data to be transmitted abroad, the country receiving the personal data must have adequate means of personal data protection in place. The Law also regulates that if there are not adequate means of personal data protection in the receiver country, the data controllers in Turkey and in the receiver country must guarantee adequate protection in written form; and if the Board has granted permission, such personal data can be transmitted abroad. On the other hand, in such conditions that the particular data can severely harm Turkey's or data subject's interests, except for provisions of international conventions, the personal data can only be transmitted abroad under the explicit consent of Data Protection Board, with relevant to the state institutions and organizations' opinion. Provisions of other legislations related to transmission of personal data abroad are reserved.

DATA CONTROLLER

The Law regulates the Data Controller organization which is vested with significant obligations in terms of personal data protection. Data Controller is obliged to prevent unlawful processing and access of the personal data, and to ensure protection of such personal data. Data controller is also required to notify the data subject about the persons during the personal data collection phase, the scope of the personal data processing, to whom and under what purposes the personal data can be transmitted together with the method, and legal reason of transmission and other legal rights of the data subject under the Article 11 of the Law.

Data subject is entitled to obtain information about his/her personal data stated under the Article 11, to whom the personal data is transmitted, and to demand for erasure or destruction of the personal data, and to claim for compensation of damages. Data controller will be jointly responsible; in case the personal data is processed by another natural or legal entity on its own behalf.

REFERRAL TO THE DATA CONTROLLER AND COMPLAINTS TO THE BOARD

New definitions brought by the Law will be "data controller" and "board" (commission). A data controller is any authorized person who can be mostly local, agency-specific or even preferred by the companies, while the Board refers to extremely official body consisting of 9 members – 2 members to be elected by the Council of Ministers, 5 members to be elected by Grand National Assembly and 2 members by the President of the Republic – which will operate as the decision making body of the Personal Data Protection Authority under the Prime Ministry. On the other hand, apart from their official duty in Board and unless a special law applies, Board members cannot be assigned to any public or private duty; cannot be in an administrative position in entities such as associations, foundations, cooperatives; cannot engage in trade; cannot be a self-employed person.

Where the data subject has valid reasons to believe the personal data is infringed, he/she will refer to the data controller to find a remedy for this condition, who will then finalize this application within 30 days free of charge. In case the application is rejected, the answer is deemed inadequate or there is not any answer given, then the data subject can lodge a complaint to the Board within 30 days from the receipt of the response given by data controller, and within 60 days in any case.

EXEMPTIONS

The first clause of the Article 28 of the Personal Data Protection Law regulates the conditions where this Law is not applicable. Accordingly, in the following cases, provisions of this Law will not be applicable;

  1. Personal data processed completely under the activities pertaining to the data subject or his/her family members residing under the same roof, provided to be undisclosed to third parties and in compliance with the obligations of the data security;
  2. Processing of the personal data for the purposes of research, planning and statistics so as to be anonymized with official statistics;
  3. Processing of the personal data for the purposes of art, history, literature or science or under the principles of freedom of expression, however provided to not infringing the national defense, national security, public order, economic stability, privacy or personal rights or not constituting a crime;
  4. Processing of the personal data in line with the preventive, conservative and intelligence activities operated by authorized state institutions and organizations to ensure the national defense, national security, public safety, public order and economic safety;
  5. Processing of the personal data in compliance with investigation, prosecution, judicial and execution operations performed by judicial or execution authorities.

Second clause of the Article 28 of the Law stipulates that Article 10 setting forth the notification obligation of the Data Controller, Article 11 setting forth the rights of the data subject excluding the right to request indemnification, and Article 16 setting forth the obligation to be registered to Data Controllers' Registry will not be applicable when:

  1. Processing of the personal data is required for criminal investigation or to prevent the potential to commit a crime;
  2. Processing of the personal data is already publicized by the data subject;
  3. Processing of the personal data is required for the authorized state institutions and organizations and professional organizations with public institution status to exercise audit or regulation duties on the basis of the authority conferred by the law and to exercise disciplinary investigation and prosecution.
  4. Processing of the personal data is required to protect government's economic and financial interests in compliance with budget, tax and financial issues.

Besides, if there is not a contrary declaration of intention in one year, the personal data collected and processed with the consent of data subject lawfully prior to the announcement date of the Law, will be statutory to the Personal Data Protection Law.

AMENDMENTS TO THE LAW

As per the Law, second clause that indicates the quality of the offense under the Article 135 regulating the offense of Recording of the Personal Data under the Turkish Penal Code No. 5237 has been arranged to be amended as "If the personal data relates to racial origins, political opinions, religious or philosophical beliefs, moral tendencies unlawfully, association or trade-union membership of the persons, the punishment shall be increased half as much of the punishment imposed under the first clause".

First sentence of third clause of the Article 226 titled "Indecency" under the same Code has been arranged to be amended as "Any person who uses children, simulated children images or people who look like children in production of indecent scenes, words or articles is punished with imprisonment from five years to ten years, and also imposed punitive fine up to five thousand days". Also, fourth clause of the Article 243 titled "Accessing to Data Processing System" has been added to be amended as "Any person who unlawfully traces data transmissions with technical devices in a data processing system or between data processing systems without accessing the system, is punished with imprisonment from one year to three years". Ultimately, Article 245/A has been added to the "Offenses in the field of Data Processing Systems" section under the Code No.5237 as:

"ARTICLE 245/A - Any person who produces, imports, delivers, transports, stores, accepts, sells, supplies, purchases or carries devices, software, passwords or any other security codes that has been created or produced to commit crime which is exclusively issued in this section and which is committed by using as a means of data processing systems, is punished with imprisonment from one year to three years, and also imposed punitive fine up to five thousand days". Health Services Fundamental Law No. 3359, Article 3, first clause, subparagraph (f) has been arranged to be amended as "Necessary registration and tracking systems shall be established by the Ministry of Health and its affiliated institutions to track peoples' health status and conditions and to offer health-care services more effectively and rapidly. This system can be founded electronically in line with e-state practices. For this purpose, the Ministry of Health, including its affiliated institutions, may build country-wide information system."

In addition, amended Article 47 of the Decree Law concerning the Organization and Duties of the Ministry of Health No. 663 will enable the healthcare organizations to process personal data belonging totheir patients which they must give by force of provided health care services.

CONCLUSION

Protection of personal data and establishment of the legal basis relating to this topic, is a critical subject particularly for the fundamental rights and freedoms from a broader perspective, which is required as a requisite of the personal and commercial life, above and beyond as one of the requirements of harmonization period for the Union Acquis.

Although the Law is drawn up on the basis of EU regulations, it is highly criticized for containing several additional provisions and definitions such as "sex life, dressing preferences" as different from the original European Union text. Thus, despite waiting to be enacted excitedly and ratified with little changes to the Draft, there is a risk for the Law will not be able to prevent the infringement of the personal data by the government, and it will be highly difficult to tussle against such infringements.

At this stage, Personal Data Protection Authority will assume a determining role with its attitudes and practices whether the intended protection will actually be ensured

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