Turkey: Personal Data Protection Under Turkish And European Legislation – II

Introduction

Law on Protection of Personal Data numbered 6698 ("LPPD" or "Law") entered into force through publication in the Official Gazette dated 07.04.2016 and numbered 29677. Through enactment of the Law, Turkey has taken the final step on the protection of personal data, and achieved its long-awaited goal in the harmonization process with the European Union. As explained previously, until the entry into force of the Law, the main legal grounds for the protection of personal data were Art. 20 of the Turkish Constitution and Art. 135 of the Turkish Criminal Code.1

As of 18.02.2016 and 07.04.2016, Turkey added two more pieces of legislation upon which the personal data protection is grounded, the Council of Europe Convention on the Protection of Individuals with regard to Automatic Processing of Personal Data ("Convention No. 108") and the LPPD, respectively. The former, namely, Convention No. 108, was signed by the Turkish Republic 28.01.1981; however, it was ratified 35 years later by Law numbered 6669.

This Article primarily aims to assess the novelties brought by the Law, by comparing and contrasting the provisions' counterparts in Convention No. 108, where necessary.

The Definitions

After entry into force of the LPPD, for the first time under Turkish Law, personal data has a legal definition, which is "...any information relating to a natural person whose identity has been or may be identified." (Art. 3/ç) Along with this, personal data processing was also defined as "any operation or set of operations which is performed upon personal data, by automatic means, in full or in part, or non-automatic means, provided that it is a part of a 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." (Art. 3/d)

In addition, the data controller, which is the main person responsible for the processing of data, is defined as "the legal entities and natural persons who are responsible for the establishment and management of the data recording system." (Art. 3/ı)

The Scope of Application

The LPPD shall be applicable to all natural persons whose personal data is processed, and to real persons and legal entities that process this data, wholly or partially, through automated or non-automated means, provided that the latter is part of any data recording system (Art. 2, Art. 3 of Convention No. 108).

As is clear through the definitions, as well, the related person, namely, the person whose personal data is protected by the Law, shall only be a natural person; whereas, the data controller may or may not be a natural person. As part of the protection of the right to private life, the LPPD does not stipulate the exemptions under the application thereof categorically; for instance, on the basis of the type of related parties whose personal data can be processed outside of the scope of the Law. Rather, the exemptions of the Law, which are not few in number, are stipulated on the basis of their aims. Such exemptions may be summarized, as follows:

  • "Processed completely for activities with regard to the data subject or his/her family members;
  • Processing for the purposes of research, planning and statistics made through anonymization;
  • Processing for the purposes of art, history, literature or science or under the principles of freedom of expression; however, provided that it neither infringes upon national defense, national security, public order, economic stability, privacy or personal rights, nor constitute a crime;
  • Processing in line with preventive, conservative and intelligence activities;
  • Processing in compliance with investigation, prosecution, judicial and execution operations." (Art. 28).

Conditions for Data Processing

The most important novelty introduced by the LPPD relates to personal data processing. Accordingly, unless certain conditions exist, personal data shall not be processed without the explicit consent of the data subject (Art. 5/1). The LPPD also stipulates the exception to this rule, namely, the conditions under which personal data can be processed without the explicit consent of the data subject, as summarized, below:

  • "If explicitly provided for by law;
  • If mandatory for the protection of the life or physical integrity of a person who cannot declare his/her intentions, or that of a minor;
  • If necessary that such data processed is for the performance of a contract;
  • If mandatory for the data controller to fulfil his duty;
  • If made public by the data subject,
  • If mandatory for the establishment, usage or protection of a right;
  • If mandatory for the legitimate interests of the data controller, given that this does not infringe upon the fundamental rights of the data subject." (Art. 5/2)

However, such criteria solely applies to the processing of the general type of personal data, such as the name, surname, date and place of birth, details of physical appearance, social security number, IP address, e-mail address, hobbies and preferences. The Law provides for a sub-category, which is the specially categorized data, and defined as the personal data relating to the ethnicity, origin, political, religious and philosophical views, information on health and sexual life,union memberships, criminal records, biometric and genetic data (Art. 6/1, Art. 6 of the Convention No. 108). Such data shall not be processed without the explicit consent of the data subject (Art. 6/2).

However, the specially categorized data, except as it relates to health and sexual life, may be processed without explicit consent if provided so by law (Art. 6/3). In addition, the LPPD regulates the erasure, destruction, anonymization, disclosure and transmission of personal data (Art. 7-9).

The Obligations of the Data Controller and the Rights of the Data Subject

The LPPD imposes an obligation upon the data controller to provide its identity, the intent under which the data is processed, to whom and why this data might be transmitted, the reason and method of data collection, and his/her rights (Art. 10). The data controller also is obliged to oversee and provide for the sound implementation of the Law (Art. 12).

The rights of the data subject, which are explicitly laid out, may be summarized, as follows:

  • "To know whether one's personal data is processed or not
  • To request information on such process, if the personal data is processed
  • To know the aim of processing of one's data and whether this aim is complied with
  • To know the third parties to whom one's data has been transmitted domestically or abroad
  • To request correction, erasure and destruction of one's personal data
  • To request notification to third parties of whether such data has been transmitted or not
  • To file complaints
  • To request compensation for the illegal processing of one's data." (Art. 11, Art. 4 et seq of the Convention No. 108)

Criminal and Administrative Liability

Criminal liability for the infringement of the Law shall be punishable by Art. 135 et seq of the Turkish Criminal Code (Art. 17). The LPPD also imposes administrative fines on legal entities and natural persons who are data controllers, ranging from TRL 5.000 to TRL 1.000.000.

Various Provisions

Through LPPD, a Data Protection Authority, and a Data Protection Board shall be established, as well (Art. 19 et seq). The Law establishes these while regulating the procedure for filing complaints, duties and working principles. Articles 8, 9, 11, 13, 14, 15, 16, 17 and 18 of the Law will enter into force six months following their publication, while the remaining articles enter into force through publication.

Conclusion

The LPPD fills a great legal gap in the Turkish legislation by regulating the protection of personal data. Although the implementation thereof is a matter to be seen, it can be said that its enactment is certainly a positive development towards greater protection of fundamental rights and freedoms, and not just only personal data.

Footnote

1. Please see our newsletter titled "Personal Data Protection under Turkish and European Legislation," published in December 2015. Link: http://www.erdem-erdem.com/en/articles/personal-data-protection-under-turkish-and-european-legislation/

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