Turkey: Processing Personal Data Based on Legitimate Interest: A Comparison of Turkish Data Protection Law, the Directive 95/46/EC and the GDPR

I. Introduction

Turkey's first and only law specifically dedicated to data protection and privacy, the Law No. 6698 on Protection of Personal Data ("Law No. 6698"), came into force on April 7, 2016 with certain transition periods. The Data Protection Board has been formed, but is not yet functioning. The secondary legislation is still pending, although certain sector-specific regulations have been put in place, and is expected to be completed by April 7, 2017.

The Law No. 6698 is essentially based on the EU Directive 95/46/EC ("Directive") with particular differences. As Turkey does not have a history of data protection laws and practice, the interpretations of the Directive in the EU will shed a light unto the interpretation of the Law No. 6698. That said, EU is in a period of transition to a new data protection regime and has recently introduced a game changer, the General Data Protection Regulation ("GDPR"), which will enter into force on May 25, 2018. Directive will no longer be applicable once the transition is over. Therefore the Directive should not alone be taken into account when construing the provisions and implementation of the Law No. 6698.

Among the provisions of the Law No. 6698, one of the most debated provisions and the one which is highly likely to lead to further discussions and disputes in the future, is Article 5/2(e) of the Law No. 6698. The article provides a legal ground for processing of personal data without the data subjects' explicit consent (which is the primary requirement for processing personal data), if the processing is necessary for the legitimate interests of the data controller. The provision corresponds to Article 7(f) of the Directive and Article 6/1(f) of the GDPR.

The next part of this article will demonstrate how this provision (Article 5/2(e) of the Law No. 6698) is articulated in these three different regulations separately and will be followed by a comparison, highlighting their similarities and differences. The final part will consist of conclusions on the possible impacts of these differences in the Turkish jurisdiction and a discussion on whether the reasons that led to changes in the Directive could be used as tools of interpretation of the Turkish data protection law as well.

II. Conditions for processing personal data based on legitimate interest under the Directive

Article 7(f) of the Directive states that personal data may be processed if 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 for fundamental rights and freedoms of the data subject.

The Directive provides that personal data may be processed for the purposes of the legitimate interests pursued by (i) the data controller or by (ii) the third party or (iii) parties to whom the data are disclosed. Then requires an evaluation of interests of the data controller/third parties versus interests "or" (this has been mistyped in the English version of the Directive as "for" (Art. 29 WP's Opinion 06/2014)) fundamental rights and freedoms of the data subject.

This evaluation is commonly referred to as a "balancing test". In this balancing test, one should weigh the nature and source of the legitimate interests and the necessity of processing for pursuing those interests, against the impact of the processing on the data subjects.

As for the data subjects' right to object such processing, the Directive requires the data subject to justify its objection (Article 14 of the Directive). If there is a justified objection, then the processing instigated by the data controller no longer involves those data.

III. Conditions for processing of personal data based on legitimate interest under the GDPR

Article 6/1(f) of the GDPR states that processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where such interests are overridden by the interests "or" fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child.

GDPR articulates this complementary legal ground quite similar to the Directive and requires the same balancing test. That said, the GDPR brings a significant difference regarding the personal data that belongs to children and the data processing performed by public authorities.

GDPR expressly requires particular consideration onto children's interests or fundamental rights and freedoms and information provided to them when processing of their personal data based on this provision. In practice this might lead to obtaining a parental consent before processing personal data of children or providing age restrictions as legal safeguards. Considering the purposes of this addition, the application might even be extended to the vulnerable segment of the population such as handicapped people or people who does not have or significantly lost their power of discernment for other reasons. Paragraph 75 of the GDPR's recital also uses the term "vulnerable natural persons", which is obviously broader and more comprehensive than "children".

The other addition to the relevant provision in the GDPR is the second paragraph, which has not been mentioned above. According to this paragraph (Article 6/2 of the GDPR), Article 6/1(f) does not apply to processing carried out by public authorities in the performance of their tasks. This newly introduces exception prohibits public authorities from relying on their legitimate interests in processing of personal data, for the processing carried out in the performance of their tasks. The recital of the GDPR clarifies the reason of this amendment by stating that the legislators have the duty to provide legal basis through issuing laws for public authorities to process personal data in the performance of their tasks and prevents the public authorities from processing personal data based on their legitimate interest in the processing.

GDPR shifts the burden of proof, as to data subjects' objection to processing, from the data subjects onto the data controllers. According to the GDPR, if the data subject objects to processing of its personal data, which is processed based on legitimate interests of the data controller, the data controller may no longer process the personal data unless the data controller demonstrates compelling legitimate grounds for the processing which override the interests, rights and freedoms of the data subject or for the establishment, exercise or defense of legal claims.

IV. Conditions for processing of personal data based on legitimate interest under the Law No. 6698

Article 5/2(f) of Law No. 6698 also provides a quite similar provision which states that personal data may be processed without data subject's explicit consent, if processing is necessary for the purposes of data controller's legitimate interests, provided that the processing does not harm the data subject's fundamental rights and freedoms.

The reasoning of this provision issued by the legislator provided an example for implementation of this provision stating that owner of a company may process its employees' personal data for arranging their promotions, salary increases or social rights or determining their role in the restructuring of the company, which constitute legitimate interests of that company. The legislator also indicates that although the explicit consent of the data subject is not required in these cases, the fundamental principles as to protection of personal data should still be complied with and the balance of "interests" of the data controller and the data subject should be taken into account.

The wording used in the provision's reasoning is interesting considering that the provision does not mention the "interest" of the data subject but rather requires the processing not to harm the data subject's fundamental rights and freedoms. The reasoning provides a wider protection in favor of the data subjects, which would also be consistent with the Directive and the GDPR.

V. Comparison of the conditions provided under the Law No. 6698 with the Directive and the GDPR

The Law No. 6698 provides that personal data may be processed without obtaining consent, for the data controller's legitimate interests, whereas the Directive and the GDPR provides that personal data may be processed for the purposes of the legitimate interests pursued by (i) the controller or by (ii) the third party or (iii) parties to whom the data are disclosed.

The balance test provided under the Directive and the GDPR require an evaluation of interests of the data controller/third parties versus interests or fundamental rights and freedoms of the data subject. However the Law No. 6698 only requires an evaluation of interests of the data controllers versus fundamental rights and freedoms of the data subject, without including the "interests" of data subjects in this assessment. As mentioned above, the reasoning of the law emphasizes the balance between "interests". However this was not expressly articulated in the provision.

Besides, the GDPR expressly indicates emphasizes that data controllers should be more careful in processing data subject's personal data based on their legitimate interest where the data subject is a child. The Law No. 6698 does not put a special emphasis on protection of personal data in cases where the data subject is child or any other person which might be considered vulnerable.

GDPR excludes public authorities from relying on their legitimate interests in processing of personal data, for the processing carried out in the performance of their tasks. The Law No. 6698 does not provide such an exception and allows public authorities to process personal data in the performance of their duties, based on their legitimate interest as well.

Since the last two were not also included in the Directive, they might not have been consequently incorporated into the Law No. 6698. As for the data subjects' right to object, the Law No. 6698 does not include a provision particular to processing conducted based on legitimate interests, and is silent on the burden of proof.

VI. Conclusion

The legal ground provided under the Law No. 6698 for processing personal data based on legitimate interest is overall in line with the Directive and the GDPR. However there are particular differences in the wording of the provisions, which could lead to a significant deviation from the EU practice.

Turkish legislators excluded the legitimate interests of third parties and the parties to whom data are disclosed from the scope of this exception. This brings the question of whether the public's overriding interest in having access to certain information, for instance the public's interest in receiving information regarding the whistleblowing of irregularities in the public authorities or regarding felonies that concern the public or other information disclosed for transparency and accountability, will not be sufficient for disclosure and dissemination of such information to public or other groups (e.g. employees of a company) that are concerned. Would it be necessary to obtain the data subject's explicit consent even when there is an overriding public interest in the processing in Turkey?

This question might find its answer in the forthcoming days through Data Protection Board decisions and court precedents on the matter or in the secondary legislation to be issued. Nevertheless, there are currently a couple of other provisions in the Law No. 6698, which might serve for the same purpose through interpretation. For instance the Law No. 6698 provides a number of exemptions from the application of the law. Among these exemptions, one of them provides exemption to processing of personal data within the scope of freedom of speech, but only if the processing does not breach national defense, national security, public safety, public order, economic safety, privacy of private life or personal rights. This provision might be construed for the interests of the public and third parties, and might serve as a legal ground for processing of data when there is public's overriding interest, without requiring explicit consent of the data subject.

The Directive and the GDPR requires both "interests" and "fundamental rights and freedoms" of the data subjects to be considered when exercising a balancing test, whereas the Law No. 6698 does not mention the "interests" of the data subjects. Therefore the scope of application of the relevant exception provided under the Law No. 6698, in this respect, is broader when compared to the Directive. This would allow a wider area of processing personal data when there is a legitimate interest of the data controller, since data controller would be obliged to consider whether the data subject's fundamental rights and freedoms override, rather than also considering whether their interests override the data controller's legitimate interest in processing the data without the data subject's consent.

There has been a quite important change in the GDPR, which shifted the burden of proof as to objections regarding processing based on legitimate interests, from the data subjects onto data controllers. On the other hand, the Law No. 6698 does not include any provision as to cases where the data controller has legitimate interest in processing personal data but the data subject objects to such processing and remains silent as to burden of proof in such cases.

Adoption of a supra-national regulation (Directive) rather than a directly applicable law inevitably leads to certain gaps in the legislation for a civil law country. Nevertheless, the legislators could have at least addressed all the issues addressed in the Directive. This could have prevented further gaps and ambiguities in the legislation in addition to the ones inevitably borne.

Furthermore the supra-national regulation that the Law No. 6698 is based on, is older than twenty years. As the EU legislation evolves, the Turkish legislators and the Data Protection Board should make use of the past experiences of the EU and construe and implement the Law No. 6698 and issue the secondary legislation in light of the GDPR which was a result of the remarkable data protection history of EU.

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
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
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