Turkey: Q&A On The Law On Protection Of Personal Data

The long-awaited Law on Protection of Personal Data numbered 6698 (the "Law") was finally published in the Official Gazette on April 7, 2016. All articles have entered into force at the publishing date except for Articles 8, 9, 11, 13, 14, 15, 16, 17 and 18 which will become effective 6 months after the publishing date.

This article aims to provide brief information on the Law in a Q&A format.   

  1. What is the main purpose of the Law?

The main purpose of the Law is to protect not only the personal data, but also the owner of the personal data. Based on this objective, the Law regulates the required procedures for processing personal data, the rights of the data subjects and the obligations of those who are processing the personal data.

  1. Who is subject to the Law?
  • All real persons whose personal data is processed and
  • All real persons and private or public legal entities who, wholly or partially, process this personal data by automated or non-automated measures, provided that the latter is part of a data recording system.
  1. How are "Personal Data" and "Process of Personal Data" defined under the Law?

"Personal data" is defined as any kind of information relating to a real person whose identity is or may be identified.

"Process of personal data" is defined as any kind of transaction on the personal data (either in its entirety or in part), such as collection, recording, storage, revision, alteration, reorganization, disclosure, transmission, dissemination, acquiring, making available, categorization, prohibition or restriction on use, provided that such transaction is performed by automated or non-automated measures (provided that the latter is part of a data recording system).

Any operation of personal data processing which is not part a data recording system will not fall under the Law; however will be subject to other legislations such as Turkish Criminal Code or Turkish Code of Obligations.

  1. What is Sensitive Personal Data?

The Law provides a sub-category for sensitive personal data.

"Sensitive Personal Data" is defined as any personal data relating to the ethnicity, origin, political and philosophical views, religious or other beliefs, appearance and clothing, membership in a union, association or foundation, health and sexual life, criminal records or biometric and genetic data.

  1. What are the other key definitions in the Law?

"Data controller" is defined as legal entities (private or public) or real persons who determine and enforce the scope and methods of personal data processing operations and who are responsible for the establishment and management of the data recording system.

"Data processor" is defined as legal entities (private or public) or real persons who process the personal data based on the authority granted by the Data Controller.

"Institution" is defined as the Personal Data Protection Institution which is an administratively and financially autonomous public institution responsible for performing the tasks assigned to it by the Law.

"Board" is defined as the Personal Data Protection Board which functions under the roof of the Institution as its decision making body and is responsible for implementation and exercise of the Law and settlement of the data subjects' complaints.

  1. What are the general principles and conditions for processing personal data?
  • It must be based on the consent of data subject,
  • It must be in compliance with the applicable legislation and must not violate honesty principles,
  • It must be correct and up-to-date (when necessary),
  • It must be carried out for specifiable, clear and legitimate purposes,
  • It must be carried out only for a specific purpose in a limited manner; the methods of which must fit to the purpose and must be not excessive or disproportionate,
  • The processed personal data must be stored only for a period that is limited under the relevant legislation or that is necessary to the purpose for which it is processed.
  1. How must the consent of the data subject be obtained?

Personal data cannot be processed without the express consent of the data subject.

The express consent must be granted for a specific subject; must be given at free will and must be based on prior information/notification given by the data controller.

  1. Is it required to obtain the consent in a specific form?

No. The Law does not require the consent to be obtained in a specific form. However, it is advised that the consent is obtained in a written or electronic format for the sake of proof.

  1. Are there any exemptions to the consent requirement?

Yes. Personal data can be processed without the consent of the owner, if it is

  • permitted by a law; or
  • is necessary for protection of the life or physical integrity of a person who is unable to legally declare his/her intentions, or of another person in similar condition; or
  • is necessary for entering into or performing a contract; or
  • is mandatory for the data controller to fulfil its duties; or
  • is already made public by the data subject; or
  • is mandatory for the establishment, use or protection of a right; or
  • is required to pursue the legitimate interests of the data controller, provided that such use does not violate the fundamental rights of the data subject.
  1. Are there any specific requirements for sensitive personal data?

Sensitive personal data cannot be processed without the express consent of the owner. Also, the adequate measures which will be determined by the Board must first be taken in order to process any sensitive personal data.

  1. Are there any exemptions to the consent requirement with regards to processing sensitive personal data?

Yes. Sensitive personal data (except for data on health and sexual life) can be processed without the consent of the data subject if it is permitted by law.

Sensitive information relating to health and sexual life can be processed without the consent of data subject only if it is processed by persons or institutions who are subject to a non-confidentiality obligation, provided that such process is carried out for the purposes of protection of public health, performance of preventive medicine, medical diagnosis or nursing and treatment activities or for the purpose of planning, management and financing of health services.

  1. Are there any specific rules for deletion, destruction of personal data or making a personal data anonymous?

The Law regulates that in the event that the reasons requiring the process of the personal data disappear, such personal data shall be erased, destroyed or made anonymous by the data controller automatically on its own or upon the data subject's request.

"Making personal data anonymous" is defined as altering the personal data in a way that it can no longer be associated with any real person whose identity is or may be identified, even by combining or matching such personal data with any other data.

  1. Can the personal data be transferred? Is there any difference between transfers made in Turkey and transfers made outside of Turkey?

In order to transfer personal data, the explicit consent of the data subject must be obtained.

However, the Law makes a distinction between the transfer of personal data in Turkey and the transfer of the data outside of Turkey, which has significance when it comes to determining the exceptions to consent requirement rule.

In order to transfer a personal data abroad without the explicit consent of the data subject, the relevant country must provide adequate level of protection or the officials in such country must undertake to provide adequate level of protection in writing and such undertaking must be accepted by the Board.

The Board will have the authority to determine whether a country meets this requirement to have adequate level of protection.

  1. What are the obligations of the data processor?
  • To inform the data subject during the processing of his/her personal data,
  • To adopt all technical and administrative measures to ensure security of the personal data,
  • To protect and maintain the privacy of the personal data,
  • To inform the data subject if the personal data is illegally obtained by third parties.
  1. What is the scope of the obligation to notify the data subjects about the data processing?

During the processing of personal data, the data controller must notify the data subject on the following:

  • Identity of the data processor,
  • The purpose of processing the personal data,
  • To whom and why the personal data may be transmitted,
  • The reason and method for data collection,
  • The rights of the data subjects granted by the Law (which are mentioned below),
  1. What are the rights of data subjects under the Law?
  • To learn if his/her personal data has been processed,
  • To request more information if the data is processed,
  • To learn the purpose of the data processing and to learn whether the processing is carried out in compliance with this purpose,
  • To learn the identity of the third parties to whom the personal data is transmitted in Turkey or abroad,
  • To request correction on the personal data,
  • To request deletion or destruction of the personal data,
  • To request a notification to be made to the third parties to whom the personal data is transmitted, regarding the correction, deletion or destruction of a data,
  • To file complaints against negative outcomes of the analyses made on the personal data through automated means, 
  • To request compensation for illegal processing of the personal data.
  1. What is the process for filing complaints?

If the data subject believes that his/her personal data is processed in violation of the Law in any way, the data subject must first apply to the data controller who must resolve this application within 30 days, free of charge. However, if such procedure brings costs to the data controller, the data controller may request remuneration from the data subject based on the fees that will be determined by the Board.

In case the application is rejected or the response given by the data controller is deemed inadequate or the data controller fails to respond to the complaint within the required time period, then the data subject can file a complaint to the Board within 30 days from the receipt of the response given by data controller or in any case within 60 days following the date the application is made to the data controller.

The data subject cannot directly apply to the Board without applying to the data controller first.

The Board settles the complaint within 60 days. If no response is given by the Board within 60 days, the application is automatically deemed rejected.

The Board is authorized to suspend processing or transmission of any personal data abroad, in case there is a clear violation of the Law which may lead to irreparable damages.

  1. What is the Registry of Data Controllers?

According to the Law and under the supervision of the Board, the Registry of Data Controllers will be established, which will be publicly available. Real persons and public and private legal entities that are processing personal data must first register to this registry prior to processing the personal data. However, the Board may provide exemption from this obligation based on the criteria which will later be determined by the Board.

  1. What are the sanctions for violation of the Law?

The Law imposes administrative fines ranging from TRY 5,000 (app. USD 1,775 /EUR 1,560) to TRY 1,000,000 (app. USD 355,000 /EUR 312,000) for violating the obligations under the Law, such as data controllers' failing to protect the security of the personal data or fulfilling the decisions of the Board.

The Law also addresses the Turkish Criminal Code regarding sanctions foreseen for the criminal acts.

  1. Are there other exemptions from the application of the Law?

Yes. Article 28 of the Law regulates in detail the cases where the Law will not be applicable such as government's processing the personal data for research, planning or producing statistics provided that data is made anonymous, or for national security purposes. 

Article 28 of the Law also regulates that Article 10 (the notification obligation of the data controller), Article 11 (rights of the data subjects (excluding the right to request indemnification)) and Article 16 (obligation to be registered to the Registry of Data Controllers) will not be applicable if:

  • Processing of the personal data is required to prevent a crime or required within the context of a criminal investigation;
  • Processing of the personal data is already made public by the data subject;
  • Processing of the personal data is required for audit, regulation or disciplinary activities performed by governmental authorities;
  • Processing of the personal data is required to protect the State's economic and financial interests with respect to budget, tax and financial issues.
  1. Is there a grace period for complying with the Law?

Articles 8 (the transfer of personal data in Turkey), 9 (the transfer of personal data abroad), 11 (rights of the data subjects), 13 (application to the data controller), 14 (filing complaints to the Board), 15 (the procedure for the settlement of the complaints) 16 (registry of the data controllers), 17 (crimes) and 18 (misdemeanours) of the Law will become effective 6 months after the publishing date.

Personal data processed prior to the publishing date (07.04.2016) must be harmonized with the provisions of the Law within 2 years following the publishing date. However, personal data which is determined as inconsistent with provisions of the Law must be erased, destroyed or made anonymous immediately.

Consents that were obtained in compliance with the law prior to the publishing date will be deemed also consistent with the Law if no objection is made regarding such consents within 1 year following the publishing date.

The Board will be established within 6 months following the publishing date.

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.

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