The Law on the Protection of Personal Data No. 6698 (the "Law") was published in the Official Gazette and entered into force, for most of its provisions, on 7 April 2016. Certain significant provisions of the Law, however, such as those regarding the transfer of personal data, the rights of the data subjects, the data controller registry and the penalties imposed in case of violation of the Law, have entered into force on 7 October 2016. Although there is still a number of unknowns regarding the implementation of the Law, now that it is fully in force, companies need to be fully alert about their personal data processing practices, and may have to revisit some of their current practices in order to comply with the new rules.
Temporary Article 1 of the Law provides that the Data Protection Authority (the "Authority") will be established within six months of promulgation of the Law. This six-month period has ended on 7 October 2016. Five members have been appointed to the Authority's Data Protection Board (the "Board") by the Parliament on 5 October 2016, and their appointment published in the Official Gazette dated 7 October 2016. The appointment of other members remains pending. As the Authority and the Board will have a central role in implementing the rules newly entered into force, a level of uncertainty will remain until the Board is fully in place, and starts issuing the decisions and exercising the powers contemplated by the Law.
You will find below the key highlights these developments.
Provisions entered in force on 7 October 2016
The Law has entered into force, for most of its provisions, on 7 April 2016, while certain provisions of the Law have entered into force on 7 October 2016. These provisions are Article 8 (Transfer of Personal Data), Article 9 (Transfer of Data Abroad), Article 11 (Rights of Data Subject), Article 13 (Application to the Data Controller), Article 14 (Complaints to the Board), Article 15 (Procedures and Principles Regarding Review upon Complaint or Ex-officio), Article 16 (Data Controllers' Registry), Articles 17 (Criminal Offences) and Article 18 (Misdemeanours).
Transfer of data falls under the broad definition of data processing and is regulated under Articles 8 and 9 of the Law. Now that these articles are in force, legal entities and individuals that process personal data through automatic means or as part of a data filing system, i.e., data controllers, will need to follow these rules for the transfer of personal data to third parties and abroad. The Law sets forth that the express consent of the data subject is required before the processing of their personal data. In the absence of express consent, personal data may still be processed if one of the circumstances listed in Article 5 or Article 6 of the Law exists. Furthermore, Article 6 of the Law requires data controllers to take adequate measures, which will be determined by the Board, for the processing of sensitive personal data.
The express consent requirement also applies to the transfer of data abroad. If one of the circumstances in Article 5 or Article 6 of the Law exists and there is adequate protection in the country to which the personal data will be transferred, then data can be transferred without the data subject's express consent. In case there is no adequate protection in the country, then the data controllers in Turkey and in the relevant country must undertake to provide adequate protection in writing and the Board's approval should be obtained. The Board determines the list of countries with adequate protection to which personal data may be transferred without the express consent of the data subject. Until the determination of this list, we recommend that companies either refrain from transferring data abroad or obtain the data subjects' express consent to avoid breaching the Law.
Data controllers may also now be subject to the requests of data subjects asserting their new rights under the Law, in writing or through tools to be determined by the Board. The data controllers must process these requests free of charge as soon as possible depending on the nature of the request, but within 30 days at the latest. If the request requires the data controller to incur expenses, these may be charged to the data subject based on the tariff to be announced by the Board. A data subject may apply to the Board within 30 days of the date that the data subject receives the data controller's response and in any event within 60 days of the date of application to the data controller, if the data controller rejects the application or fails to respond, or if the data subject does not find the data controller's response satisfactory.
Once the Authority and the Board are established, there will still be a preparation period for the Board to take the necessary measures and issue crucial decisions necessary for the Law to be fully implemented, such as the list of countries it considers to provide adequate protection. We would expect the Authority as a regulator to publish certain guidance for this transition period. The Law provides that secondary legislation must be issued within one year of promulgation of the Law, i.e. until 7 April 2017.
Data Controllers' Registry
One of the responsibilities of the data controllers under the Law is to register with the data controllers' registry to be established under the Authority. The data controllers will be required to register with the data controllers' registry within the timeline to be determined and published by the Board. The Board, however, is entitled to introduce exceptions to this requirement considering objective reasons such as the type and quantity of the data, whether the processing of data results from the law, whether the data will be transferred to third parties, etc. These matters are not limited in the Law. Thus, the Board will determine the cases in which the data controller does not need to register with the data controllers' registry. The procedures and principles governing the data controllers' registry will be defined by the Authority through secondary legislation.
Data Protection Authority
The Authority will be established as a public, administratively and financially autonomous entity to fulfill the duties defined in the Law. The Authority's duties include following national and international developments in the legislation, cooperating with international institutions, and submitting an annual activity report to the Presidency, the Prime Ministry and the Committee on Human Rights Inquiry (TBMM İnsan Haklarını İnceleme Komisyonu). The Authority will be based in Ankara and placed under the authority of the Prime Ministry.
The Board is the decision body of the Authority and is comprised of nine members, five of whom are appointed by the Parliament, two by the President and two by the Council of Ministers. The Board may convene with at least six members and take decisions with the affirmative votes of the majority of its members. Board members cannot refrain from voting. Five members have been appointed to the Board by the Parliament on 5 October 2016, and their appointment published in the Official Gazette dated 7 October 2016. The appointment of other members remains pending.
The Law sets forth the duties and authorities of the Board, which include ensuring that personal data is processed in conformity with fundamental rights and freedoms, settling examining complaints regarding the violation of data protection rights and investigating whether personal data is processed in line compliance with the legislation (either upon following a complaint or ex officio, if it learns about an alleged violation) and taking temporary measures if necessary.
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.