Turkey: First Personal Data Protection Act In Force

The long-awaited Personal Data Protection Act no. 6698 (Kişisel Verilerin Korunması Kanunu) (the "DPA" or "Law") was approved by the Turkish Parliament on 24 March 2016, was published in the Official Gazette on 7 April 2016, and hence came into force. Although various acts include provisions for the protection of personal data (eg the Turkish Code of Obligations, the Turkish Penal Code, the Turkish E-Commerce Act), the DPA is the first comprehensive act regulating data protection in Turkey. The DPA reflects the EU's Data Protection Directive (95/46/EC) ("Directive") and thus, Turkey continues adjusting its legislation to EU standards since enacting the Turkish E-Commerce Act on 1 May 2015.1

1. PURPOSE AND SCOPE OF THE DPA

Pursuant to Art (1) (1) DPA, the object of the Law is (i) to protect the fundamental rights and freedoms of natural persons with respect to the processing of personal data, furthermore it regulates (ii) the liabilities of natural persons and legal entities processing personal data, and the procedures and principles related to same.

The DPA applies to all natural persons whose personal data (defined as any information relating to an identified or identifiable natural person- "Personal Data") is processed, and to all natural persons and legal entities processing personal data wholly or partly, whether or not by automatic means ("Data Subject"). Pursuant to Art (28) (1) DPA, the Law shall not apply to processing of Personal Data:

  • by a natural person in the course of a purely personal or household activity;
  • for the purpose of creating scientific research, planning and government statistics, provided that the data is anonymised;
  • in the course of processing operations concerning art, history, literature, scientific purposes, and freedom of speech, provided that such processing does not violate national defence, national security, public safety, public order, economic well-being of the country, personal rights or the right to privacy;
  • in the interests of national defence, national security, public safety, public order, economic well-being of the country within the scope of preventive, protective and intelligence-related activities by official authorities;
  • in the course of activities of judicial authorities in areas of criminal law.

2. PROCESSING AND TRANSFER OF GENERAL DATA: GENERAL PRINCIPLES AND CRITERIA

Processing of Personal Data means any operation which is performed upon such data wholly or partly, whether or not by automatic means, such as collection, recording, adaption or alteration, retrieval, storage or transfer to third parties or abroad ("Processing").

2.1. Processing of Personal Data

Art 4 the DPA sets forth the general principles to be complied with when processing personal data, which must be:

  • processed fairly and must be lawful;
  • accurate and, where necessary, kept up to date;
  • collected for specified, explicit and legitimate purposes;
  • adequate, relevant and not excessive in relation to the purposes for which they are processed;
  • stored for no longer than is necessary for the purposes for which the data was collected or the time designated by relevant law.

Furthermore, pursuant to Art 5 the key criterion for Processing is the Data Subject's explicit consent, which is defined as any freely given informed and specific consent. However, this provision can be departed from if:

  1. it is permitted by any law;
  2. it is necessary in order to protect the life and physical integrity of the data subject or another person where the data subject is physically or legally incapable to give its consent;
  3. processing is necessary for the performance of a contract to which the data subject is party;
  4. processing is necessary for compliance with a legal obligation to which the controller (definition below) is subject;
  5. data is revealed by the Data Subject itself;
  6. processing is necessary for the institution, usage or protection of a right;
  7. processing is necessary for the purposes of legitimate interests of the controller, provided that fundamental rights and freedoms of Data Subjects are not violated.

The processing of special categories of data, which reveals the racial or ethnic origin, political opinions, religious or other beliefs, appearance (which is also categorised as such data in contrast to the Directive), trade-union and other memberships, health and sex life, criminal convictions and biometric or biological data ("Sensitive Personal Data"), is subject to stricter rules: It requires not only the Data Subject's explicit consent, but also adequate measures by the supervisory board of the data protection authority in Turkey ("Authority"). However, this regulation shall not apply, if (i) processing of Sensitive Personal Data, except concerning health and sexual life, is expressly permitted by any law, and if (ii) processing of Sensitive Personal Data concerning health and sexual life is necessary for the purposes of protection of public health, protective medicine, medical diagnosis, provision of care or treatment or the management of health-care services by an authorised body or persons who are under the obligation of confidentiality.

2.2. Cross-border transfer of Personal Data

Pursuant to Art 9, Personal Data may only be transferred abroad after obtaining a Data Subject's explicit consent. The aforementioned exceptions in relation to processing of such data also apply to transfers outside of Turkey. However, the Law sets forth further safety measures relating to cross-border transfers in accordance with such exceptional cases: The destination country must have any adequate level of protection, which is to be determined by the Authority, otherwise the Data Controller in Turkey and the data importer abroad have to commit in writing to provide an adequate level of protection, which is to be approved by the board of the Authority.

3. CONTROLLERS AND PROCESSORS

The DPA distinguishes between controller and processor. Controller ("Data Controller") shall mean the natural or legal person which determines the purposes and means of Processing and which implements and manages a personal data filing system. Data processor shall mean a natural or legal person, which processes Personal Data on behalf of the Data Controller. Since data processors are subject to the DPA and thus to Data Controllers' obligations, they must comply with the principles relating to Processing and respectively share responsibility with Data Controllers.

3.1 Data Controllers' obligations

Information to be given to the Data Subject

According to Art 10, the Controller or his representative must provide the Data Subject, from whom related data is collected with the following information:

  • the identity of the Data Controller and of his representative, if any;
  • the purposes of processing for which the data is intended;
  • the recipients of the data;

the means and legal basis for the data collection.

Consequently Data Subjects have (i) the right to obtain information relating to their personal data (eg whether or not the data relating to them is being processed, and information as to the purposes of processing; rectification, erasure or blocking of personal data etc), (ii) the right to object in cases of decisions which produce effects to the detriment of the Data Subject, and (iii) the right to claim compensation for damages as a result of unlawful processing.

Hence the Data Controller is subject to the obligation to implement appropriate technical and organisational measures necessary for the protection and security of personal data against unlawful processing and unauthorised access.

Obligation to register with the Data Controllers' registry

Prior to the commencement of Processing, Data Controllers must register with the data controllers' registry, unless they can rely on exemptions provided by the Authority.

Sanctions

For breaches of law the DPA imposes administrative fines between TL 5,000 and TL 1,000,000 (approx between EUR 1,500 and EUR 310,000) or imprisonment of one to four years pursuant to the Turkish Penal Code.

4 TRANSITIONAL PROVISIONS

The DPA stipulates a gradual entry into force, thus regulations relating to the transfer of Personal Data, rights of Data Subjects, registry and sanctions will enter into force after six months.

Footnote

[1] For further information on the Turkish E-Commerce Act please see Schönherr's Roadmap16 roadmap2016.schoenherr.eu/new-e-commerce-legislation-in-turkey/

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
Similar Articles
Relevancy Powered by MondaqAI
Bezen & Partners
Gün + Partners
 
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”

Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Bezen & Partners
Gün + Partners
Related Articles
 
Related Video
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
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 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
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions