Turkey: Comparison Of Turkish Data Protection Law With EU Directive 95/46/EC

Last Updated: 25 April 2016
Article by Gönenç Gürkaynak Esq, İlay Yılmaz and Nazli Pinar Taşkıran

Most Popular Article in Turkey, May 2016

Turkey's newly enacted Law on Protection of Personal Data ("Law") is based on EU Directive 95/46/EC ("Directive") on protection of individuals with regard to the processing of personal data and on the free movement of such data. Although the Law is mainly based on the Directive, it is not identical and it differs from the Directive in certain points. The main difference between the Directive and the Law is that Directive focuses on the act of processing personal data rather than the parties to such processing; whereas the Law mainly provides rights and imposes obligations on the parties of a data processing act. Nevertheless this difference also arises due to the nature of these two different pieces of legislation, as the Directive is a supra-national regulation and the Law is a national regulation that is directly binding and applicable without requiring further need for another law. Below please find significant differences of the Law and the Directive:

Sensitive Personal Data

The Directive sets out special categories of personal data as "racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership and health or sex life". The Law also considers such data as sensitive data, but also adds "appearance and clothing, data relating to criminal records and biometric and genetic data" to the list of special categories of personal data. Both the Directive and the Law stipulates that sensitive personal data may only be processed upon the data subject's consent. For processing of sensitive personal data without the consent of the data subject, the Directive sets out detailed provisions, whereas the Law states that any special data except for data related to health and sex life of the data subject may be processed without the data subject's explicit consent, where e.g., stipulated by laws, or in case of sexual and health data, for the purpose of protecting public health.

Transfer of Personal Data

The Law distinctively regulates the transfer of personal data, by distinguishing the transfer of personal data in Turkey and abroad. The Directive regulates transfer of data to non-EU countries and requires that such third party countries must provide an adequate level of protection. The Law's procedure on data transfer is similar to the Directive's, but there are some differences which appear to be enacted in relation to certain developments within Turkey.

Article 9 of the Law regulates transfer of data to third part countries, and states that personal data may only be transferred with explicit consent of the data subject. Accordingly, the adequate level of protection requirement only applies in cases where data processing without the data subject's explicit consent is legitimate. For example, if data processing is necessary for the performance of a legal obligation by the data controller, such as providing data to governmental authorities for tax purposes, the data subject's explicit consent would not be required. In such a case, the data may be sent outside Turkey without obtaining explicit consent of the data subject, provided that the relevant foreign country provides an adequate level of protection. Similar to the application of the Directive, there is an authority, i.e. the Data Protection Board ("the Board") to determine whether the relevant foreign country provides an adequate level of protection or not. However, since the Board will be established within 6 months, this procedure will be enlightened once the Board is established and the provision is implemented in practice.

As for sensitive information, in cases where the personal data may be processed without explicit consent of the data subject (e.g. where stipulated by laws, or in case of sexual and health data, for the purpose of protecting public health), sensitive data may be transferred abroad without explicit consent; provided that a) the relevant foreign country has an adequate level of protection, as determined by the Data Protection Board ("the Board") or if not, b) the data controllers in Turkey make a written declaration that they ensured adequate level of protection in the relevant foreign country and Data Protection Board grants a permission.

In addition to the rules explained above, a new provision that is not included within the Directive states that where Turkey's or the data subject's interests will be seriously undermined, personal data may be transferred abroad upon the authorization of the Board by taking the relevant public institution or authority's opinion. The provision requires Board's permission, which is rendered by taking the relevant public authority's opinion, for transfer of data which may seriously undermine data subject's or Turkey's interests.

The provision is ambiguous as it does not (i) specify any criteria to assess or determine how the transfer of data abroad may seriously harm Turkey's or relevant person's interest, (ii) precisely define any situation or instance in which transfer of data abroad will be subject to the Board's permission and (iii) designate any authority or specify who will decide whether permission is required with respect to the transfer of data abroad. The Law does not define or determine the scope of or specify any condition or term referred therein.

Since there is no specification or criteria as to these ambiguous conditions that require the Board's permission, the possible consequences of implementation of this provision is not foreseeable at this stage. A data controller or processor may not be in a position to assess and determine whether a data transfer could seriously harm Turkey's or relevant person's interest and require the Board's permission. Considering this provision as a general requirement for all data transfers abroad would be against the purposes of the Law and the article related to data transfers abroad. Therefore one should consider this provision as an exceptional requirement for sensitive issues.

There is also no guidance on how the transfer of personal data will be made between the group companies at this stage.

Data Controllers' Registry

Article 16 of the Law states that Presidency of the Board will establish and maintain publicly available register of controllers (the "Data Controllers' Registry") under the supervision of the Board. Real or legal persons processing personal data must enroll to the register before they start processing. However, the Board may provide an exemption from the obligation to enroll to the registry in so far as this is in line with the objective criteria to be determined by the Board such as the characteristics and the number of data to be processed, whether or not data processing is required by law or whether or not data will be transferred to third parties. The application to enroll to the register will be made through a notification that includes certain information as set out by the Law. This is a procedure similar to the obligation to notify the supervisory authority which is set forth in Article 18 of the Directive. However, the European Council's approach on the matter differs from the Law's approach. The European Council's approach aims the final control, eliminating notifications and limiting authorizations to the bare minimum and focuses on notification of data breaches. In this regard, the Law appears to be more restrictive than the EU legislation in terms of the detailed registry approach.

The Data Protection Board and Data Protection Authority

The Law requires establishment of a Personal Data Protection Authority ("Authority") as a public entity, which has administrative and financial autonomy, in order to perform the tasks assigned to it by the Law. The Law also states that the Data Protection Board will be the decision making organ of the Authority, which performs the tasks and exercises its authority assigned to it by the Draft Law and other legislation, independently and under its own responsibility. It is also stated that on issues related to its duties, the Board cannot be given any order, directive, advice or suggestion by an organization, an office, an authority or a person of any kind. The EU Directive requires member states to establish authorities to watch and supervise the processing of personal data and principles in regards to this processes, which shall exercise their functions with complete independence from the legislative and executive bodies and emphasizes that this independence is an essential component of the protection of individuals in regards to the processing of personal data; whereas the Law states that the Data Protection Authority shall be related to the Prime Ministry which might cripple independency of the Authority.

The differing provisions of the Law and how they will apply in practice are expected to be clarified during the upcoming months, once the secondary legislation is enacted and the relevant authorities are established.

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.

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
Font Size:
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
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
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.


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.


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.


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.


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.


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.


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.