Turkey: A New Chapter In Turkish Privacy Law

Last Updated: 13 October 2016
Article by Arzu Aksaç and Firat Akşener

This article was originally published in the IFLR Mint Guide for Turkey

Concerns regarding rights of privacy had begun to spread around the world as early as the 1960s and prompted the enactment of data protection laws in the 1970s in continental Europe and the US. Turkey followed this trend a decade later on September 23 1980, when it adhered to the OECD Guidelines on the Protection of Privacy and Transborder Flows of Personal Data. This was coupled with Turkey's signing of the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (Convention) on January 28 1981. Nevertheless, the Convention was not enacted into Turkish Law until 2016 due to a lack of political will to transpose the principles enshrined in the Convention into Turkish Law, which was a pre-requisite stipulated in article 4 of the Convention.

Even though the First Draft Law on Data Protection came to light in 2008, it could not be brought before the Turkish parliament (Parliament) until 2014 since it underwent a series of amendments and was stalled in parliamentary commissions. Thus, the Second Draft Law on Data Protection (Second Draft Law) was referred to the Parliament only on December 26 2014, before receiving the approval of the majority on March 24 2016 and being submitted to the President of the Republic of Turkey for his assent on March 30 2016. Save for its certain specified provisions, it has become effective as of April 7 2016 upon being published in the Official Gazette of the same date.

In the period between the signing of the Convention and its enactment, data protection rules were stipulated in scattered pieces of legislation such as the Turkish Constitution of 1982, the Turkish Civil Code of 2001 and the Turkish Criminal Code of 2001.

Even though these general and special laws will remain in force with the enactment of the Turkish Data Protection Law, they may be amended so as to be applied in compliance with it.

The Convention

The Convention was ratified by Parliament and enacted into Turkish Law with the publication of Law 6669 in the Official Gazette on February 18 2016, after having been kept on the shelf for almost 35 years.

Article 3 (second paragraph) of the Convention provides certain entitlements: any member state can give, at the time of signature or when depositing its instrument of ratification, acceptance, approval or accession, or at any later time, notice to the secretary general of the Council of Europe that, among other things, it will not apply this Convention to certain categories of automated personal data files, a list of which will be deposited, and that it will also apply this Convention to personal data files that are not processed automatically.

On the basis of the authority conferred by article 3 (second paragraph) of the Convention, Turkey declared that it would not apply the Convention to the following personal data:

  • the automatic processing of personal data realised by natural persons exclusively for their personal use or household purposes;
  • public registers specifically regulated by law in Turkey;
  • data that is available for general public information in accordance with law; and,
  • personal data which is processed by public institutions for the purposes of national security, defence and for the investigation and prevention of criminal offences.

Similarly, Turkey has also declared that the Convention will apply to personal data which is not processed automatically.

Data Protection Law 6698

As explained above, Turkish Data Protection Law 6698 (DPL) was enacted by Parliament on March 24 2016 and, apart from its provisions which will become applicable six months after April 07 2016,has become applicable concurrently with its publication in the Official Gazette on April 07 2016

Apart from being a reflection of the Convention, the enactment of the DPL also forms part of Turkey's efforts for harmonising its laws with those of the EU. For this purpose, the DPL is modelled on Directive 95/46/EC of the European Parliament and of the Council of October 24 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (Directive). Although the DPL will introduce important changes for the processing of personal data under local law, it is destined to fall behind the standards met by EU member states soon upon the forthcoming adaptation of (i) the General Data Protection Regulation (Regulation) and, (ii) the Directive of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data by competent authorities for the purposes of prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and the free movement of such data (New Directive). The incompatibility which will occur between the forthcoming EU legislation and the DPL when the prospective Regulation and the New Directive are put into effect can be removed by way of amendments to the DPL. However, this would trigger a new enactment process, which is likely to be time consuming; yet we do not expect this process to be as excessively long as it was with the enactment of the DPL.

In parallel to the Directive, the DPL aims at protecting the fundamental rights, in particular, the right to privacy, and sets out the obligations, procedures and principles that individual persons and legal entities processing personal data must abide by. The DPL is applicable to individual persons whose personal data has been processed and individual persons or legal entities that process personal data through automatic, partially automatic, or non-automated means, by way of forming part of a personal data filing system.

Exceptional circumstances under which the DPL will not be applicable are prescribed in article 28 of the DPL as: i) the processing of personal data by individual persons in relation to their private issues and the issues relating to those who live in the same household, provided that such personal data is not transferred to third parties and data protection obligations are observed; ii) the use of personal data for planning, statistical, research or similar purposes after being anonymised; iii) the use of personal data within the context of art, history, literature, or for scientific purposes, provided that the use of that personal data does not pose any threat to national defence, national, public or economic security, public order or violate personal rights or privacy or constitute a criminal offence; iv) the use of personal data by lawfully established and authorised government institutions in their preventative, protective or intelligence practices aimed at protecting national defence, national, public or economic security or public order; and, v) the use of personal data by judicial authorities within the context of judicial investigations, prosecution, adjudication and enforcement. In addition to these, as regards the disclosure requirement that applies to controllers, data subjects' rights under article 11, excluding the right to claim compensation, and the provisions regarding controllers' obligation to register in the controllers' register will not be applied under certain circumstances. Those circumstances include, among other things, for the purposes of protecting the financial and economic interests of the state or, where the personal data concerned was already made public by the data subject.

The duties and structure of the Turkish Data Protection Institution (Institution), which will act as the supervisory authority as described both in the Directive and the Convention, are regulated under articles 20 to 27 of the DPL, according to which the Institution will be affiliated with the prime ministry. This will no doubt pose a threat to the Institution's independent nature by exposing it to the risk of political influence and appears to be the most important downside of the DPL. Moreover, the board, which is the decision making body of the Institution, consists of nine members, five of which are designated by Parliament, two by the president and the remaining two by the council of ministers. In contrast with this, article 20 of the DPL regulates that the board must act independently and not be influenced by any individual person or legal entity, regardless of the title or position it may hold. The duties of the Institution include: observing developments in legislation, making evaluations and doing research, cooperating with government offices, civil society organisations, universities and trade organisations; where necessary, observing international developments regarding data protection, and submitting an annual activity report to the presidency, and the human rights observation committee of the assembly and the prime ministry.

Personal data

The board is entrusted with the duties of ensuring that personal data is processed in compliance with fundamental rights and freedom, evaluating the complaints of data subjects, taking temporary measures regarding the processing of personal data, imposing administrative fines, setting out the rules relating to data protection and the duties of the controllers.

Article 3 of the DPL echoes article 2 of the Directive and defines personal data as: 'any information relating to an identified or identifiable natural person'. Since the DPL remains silent on the criteria for identifiability, we believe that the definition in article 2 of the Convention should be taken as the basis.

The terms 'processing of personal data', 'data subject', 'personal data filing system', 'processor' and 'controller' all have similar meanings as used in the Directive.

Article 4 of the DPL, which reflects the provisions of article 6 of the Directive, regulates that personal data can only be processed if: i) it is done lawfully and in compliance with the principles of good faith; ii) the personal data subject to processing is accurate and up-to-date; iii) the personal data is processed for specific, explicit and legitimate purposes iv) it is stored only for a period necessary for the purpose for which it is processed.; v) the processing is limited in scope and proportionate.

The processing of personal data is permitted according to article 5 of the DPL so long as at least one of the following conditions is met: i) it is permitted by law, ii) it is required to protect the life or physical integrity of a data subject or of another person in the case where the data subject is physically or legally incapable of giving his/her consent, iii) the personal data was made available to the public by the person it relates to, iv) it is required to grant, exercise or protect a legal right, v) it is required for the controller to perform its duties, provided that the fundamental rights and freedom of the data subject are not violated, and, vi) when it is necessary to process personal data relating to parties of a contract, provided that the processing relates to the making or performing of a contract. The provisions under article 5 of the DPL are compatible with the corresponding article 7 of the Directive, even though subsection (f) of the Directive, which allows processing when it "...is necessary for the purposes of the legitimate interests pursued by the controller or by the third party or parties to whom the data are disclosed, except where such interests are overridden by the interests of fundamental rights and freedom of the data subject which require protection under article 1 (1)" provides wider protection for individuals.

The processing of special categories of personal data, namely personal data concerning race or ethnic origin, political opinions, religious, philosophical or other beliefs, outfit, trade-union membership, health or sexual life, biometric or genetic information, convictions or security measures taken in respect of a person, is forbidden under the DPL, save for certain specified circumstances. Special categories of personal data, other than those relating to a person's health or sexual life can be processed without the express consent of the data subject, provided that it is prescribed by law. Under article 6 (third paragraph) of the DPL, personal data concerning the health or sexual life of a person can only be processed for the protection of public health and/or other health-related issues.

Personal data processed in accordance with the DPL, must be erased, destroyed or anonymised ex officio by the controller or upon the application of the data subject, once the purposes for which the personal data was processed have been met or become no longer relevant. The procedure relating to this process will be regulated by a communiqué yet to be issued.

The transfer of personal data is prohibited under article 8 of the DPL, unless express consent is given by the data subject. However, in the case of the exceptions set out under article 5 and article 6 (third paragraph) of the DPL, personal data can be transferred without the data subject's consent.

The transfer of personal data abroad is also subject to the express consent of the data subject. Nevertheless, in cases of the exceptions set out under article 5 and article 6 (third paragraph) of the DPL, subject to the recipient country providing adequate protection and the Institution's approval, personal data can be transferred abroad without the data subject's express consent. In cases where the recipient country does not provide adequate protection, personal data can only be transferred without the data subject's consent by way of obtaining a written statement from the controller of the recipient country, in which it undertakes to protect the transferred personal data and with the authorisation of the Institution. Whether a foreign country provides adequate protection for personal data will be determined by a list to be published by the Institution. Article 9 (fifth paragraph ) of the DPL contains a vague provision, which provides that, without prejudice to the provisions under the treaties to which Turkey is a party, personal data may only be transferred abroad with the express consent of the relevant institution and the Institution, if such a transfer would be detrimental to the interests of Turkey or the data subject.

Under the disclosure requirement, controllers, while processing personal data, are obligated to inform the data subject about: the identity of the controller and of its representatives; the purposes of the processing; the transferees of the personal data and the reasons for the contemplated transfer; the methods and the legal basis of the collection of the personal data and data subjects' rights under article 11 of the DPL, which include the right to obtain information from the controller about the issues explained above, file complaints regarding any non-favourable outcome of the analysis of his/her processed personal data exclusively by any automated means, request that personal data be corrected, if not accurate, or erased, destroyed, and claim damages. Under article 16 of the DPL, controllers must register in the controllers register, which will operate under the Institution's supervision.Controllers will also be obliged to ensure that personal data is not processed or accessed illegally and that all necessary supervision and controls are carried out to provide the due application of the DPL. In cases where personal data is processed by third parties in the controller's name, the controller will be jointly liable together with these third parties, and is obliged to promptly inform the Institution of any illegal processing of personal data. The Institution may announce, via the internet or other means it deems appropriate, the illegal processing of personal data, where necessary.

A two-tier complaint mechanism is designed under article 13 of the DPL, by means of which data subjects can seek protection for their privacy. A data subject is vested with the right to refer his/her complaints to the controller, in writing or through alternative methods to be determined by the Institution. The controller will then have a maximum thirty days to assess the application and make a decision. Should the controller dismiss a complaint so filed, the complainant can appeal to the Institution within thirty days of receiving the controller's dismissal and, in any case, within sixty days of the submission of his complaint to the controller. The Institution will have sixty days to process an application and will require the controller to remedy the breach of law if it decides in favour of the applicant. The Institution also has the authority to make resolutions of general application and make them public if it determines that the breach subject of a data subject's complaint is widespread. Data subjects whose personal rights have been infringed can also seek compensation through general provisions of Turkish law.

The DPL stipulates several penalties for the breach of its provisions, which may vary from imprisonment to administrative fines depending on the severity of the breach.

Article 30 of the DPL makes amendments to various laws, such as the Turkish Criminal Code and the Health Services Fundamental Law, to reflect the provisions of the DPL.

A transition period is envisaged under provisional article 1 of the DPL, which will start running upon effectiveness of the DPL. The Institution will be established within six months of the DPL's effectiveness. Similarly, all personal data which was gathered before the effectiveness of the DPL will have to be stored in compliance with the DPL, and personal data that was gathered in violation of the provisions of DPL will be destroyed. All government institutions will appoint a director within one year of the DPL's coming into force, who will be responsible for coordination with the Institution. Finally, all communiqués relating to the DPL will have to be published by the Institution within one year of the announcement of the DPL in the Official Gazette.

Articles 8 (transfer of personal data), 9 (transfer of personal data abroad), 11 (rights of data subjects), 13 (application to the controller), 14 (appeal to the board), 15 (procedure relating to ex officio investigations and investigations based on complaints), 16 (controllers' register), 17 (offences) and 18 (misdemeanours) of the DPL will become effective six months after the publication of the DPL in the Official Gazette. The remaining provisions will become applicable concurrently with the publication.

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
BTS & 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
BTS & 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