Turkey: Circumstances in which the Grounds of Data Processing Are No Longer Valid

On 29 May 2017, the Personal Data Protection Authority ("DPA") published the Draft Regulation on the Erasure, Destruction or Anonymization of Personal Data ("Draft Regulation") on its official website, and invited public comment on the relevant secondary legislation. The Draft Regulation was open for public comment until 12 June 2017, and the DPA is currently in the process of finalizing the text.

The Draft Regulation is based on Articles 7 and 22 of the Law No. 6698 on the Protection of Personal Data ("DP Law"). Article 22 authorizes the DPA to draft secondary legislation related to the DP Law. As a general rule, as promulgated under Article 7 of the DP Law, in the event that the reasons for which the personal data are processed cease to exist or are no longer valid, personal data should be erased, destroyed or anonymized by the data controller ex officio, or upon the request of the data subject, regardless of whether the personal data has been processed in accordance with the DP Law and other relevant legislation. Moreover, as per Article 138 of the Turkish Criminal Code, when the data controller fails to destroy or erase personal data in cases where personal data processing is against the law and in breach of the good faith principle, the data controller may be sentenced to a prison term of 1-2 years. Therefore, this obligation may have criminal consequences and it is critical to understand the circumstances in which the "grounds of data processing are deemed to be no longer valid."

As per Article 5 of the Draft Regulation, the necessary conditions for processing personal data cease to exist or are deemed not to be fulfilled, in the particular circumstances set out below:

(i) In case of an amendment or abolition being made to the provisions in the relevant legislation that constitutes the basis of personal data processing,

(ii) Where there is no agreement between the parties, where the agreement is invalid, or where the agreement is automatically terminated, in case of termination or revocation of a contract,

(iii) Where the underlying purpose of personal data processing ceases to exist,

(iv) Where personal data processing is against the law and in violation of the good faith principle,

(v) If the data subject withdraws its consent, where the personal data processing can only be carried out subject to the condition of explicit consent,

(vi) Where the data controller accepts the data subject's request regarding deletion, erasure or anonymization of personal data within the scope of their rights under Article 11 of the DP Law,

(vii) Where a complaint is submitted to the DPA and such complaint is approved by the DPA, in case the data controller denies the data subject's request for the erasure or destruction of their personal data,

(viii) Where there are no conditions that could justify the retention of personal data for an extended period of time, after the maximum required period for the retention of personal data has already elapsed or expired,

(ix) Where the conditions requiring the processing of personal data as per Articles 5 and 6 of the DP Law cease to exist.

If any of the conditions above is met, then the data controller is required to erase, destroy or anonymize personal data on its own, or upon the request of the data subject, as per Article 5 of the Draft Regulation. Therefore, it should be emphasized that the data controller does not need to receive the data subject's request in order to initiate the erasure, destruction or anonymization process, and that the data controller may start the process of erasure, destruction, or anonymization on its own initiative, in order to avoid falling afoul of the regulations or inadvertently engaging in any illegal activities within the scope of the foregoing provisions.

Definitions of erasure, destruction, or anonymization were also promulgated under the Draft Regulation, as explained below:

(i) According to Article 8 of the Draft Regulation, the erasure of personal data wholly or partially achieved by automatic means is defined as the process of rendering the relevant personal data inaccessible to the relevant users and unusable in any way or by any means.

(ii) According to Article 9 of the Draft Regulation, the destruction of personal data is defined as rendering the entire physical filing/archiving medium, wherein information is stored and which is capable of data storage, irrecoverable and unusable.

(iii) Finally, as per Article 10 of the Draft Regulation, anonymization is defined as rendering personal data anonymous in such a way that it cannot be related to or associated with an identified or identifiable real person, even through the process of matching such data to other data.

In conclusion, the Draft Regulation—which is not yet in effect and may be subject to change—provides, in its current published state, insight and guidance on the erasure, destruction and anonymization of personal data. In order to avoid criminal consequences, data controllers need to establish strong internal processes and procedures to monitor the conditions and purposes of processing personal data, and adjust their data processing practices to the requirements of the new regulations as necessary.


This article was first published in Legal Insights Quarterly by ELIG, Attorneys-at-Law in September 2017. A link to the full Legal Insight Quarterly may be found here


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
 
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 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
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.