Turkey: Current Debates On Personal Data Protection; What Extent Does The Law Apply To Foreign Data Controllers?

Last Updated: 10 November 2017
Article by Serkan İçtem and Berna Aşık Zibel

The first anniversary of the Law on Protection of Personal Data No. 6698 ("Law") is now passed, however practice under the Law has not yet been clarified entirely. There are still secondary regulations which are not put in effect and important practical issues begging for clarification.

The Turkish Personal Data Protection Authority ("PDPA") recently published some guidelines to clarify implementation of the Law. On 28 October 2017, the Regulation on Deletion, Destruction and Anonymization of Personal Data ("Deletion Regulation") was published in the Official Gazette no. 30224. We expect that the draft Regulation on Data Controllers' Registry ("Draft Regulation on Registry"), which was submitted to public review in May 2017, will also enter into force soon.

A total of twelve guides were published in the official website of PDPA on various areas of practical application of the Law. Most guidelines relate to specific matters including; defined terms such as personal data, processing, data controller; basic concepts such as express consent, anonymization, related person; what is express consent; how to transfer personal data abroad; constitutional right of an individual to request personal data protection; right of an individual to apply PDPA for complaints. Two main guidelines are directly linked to each other; the first one being the general "Implementation Guideline" and the second one being the "Q&A Guideline on Implementation" ("Q&A"). These guidelines are only explanatory and not legally binding, yet they provide valuable information on the future practice of the PDPA.

Over the last year, there were numerous debates on various aspects of the Law. Herein this paper, we aim to highlight few of these debated topics in light of these recently published guidelines. 

Deletion, Destruction or Anonymization of Personal Data

As stated above, Deletion Regulation was published in the Official Gazette and will enter into force on 1 January 2018.

Under the Deletion Regulation, data controllers who are under an obligation to register with the data controllers' registry are required to draft and implement a "personal data retention and destruction policy". The Deletion Regulation sets forth specific elements to be included in this policy and requires data controllers to delete, destruct or anonymize the outdated personal data periodically and maximum in semiannual intervals. In addition, data controllers shall keep all records with respect to deletion, destruction or anonymization of personal data for at least three years. Although, the Deletion Regulation implies that data controllers may either (i) delete, (ii) destruct, or (iii) anonymize personal data which is outdated or requested by a data subject to be deleted or destructed, it is debated topic whether data controllers are in fact free to choose between these actions. "Deletion of personal data" is defined as "the process of making personal data inaccessible to and unusable by the relevant users" whereas the "destruction" is defined as "the process of making personal data inaccessible to and unusable by anyone". The significant difference between these two terms lies on whether data will be inaccessible only to "relevant user" or to "anyone", since the term of "relevant user" is defined under the Deletion Regulation as those who process personal data within the organization of the data controller or with the authority given by the data controller; except those who are responsible for the technical storage, preservation and backup of the data. In other words, when deleted, data will still be accessible to those who are responsible for technical storage, preservation and backup of the data and if data controller has the right to choose between these actions, choosing destruction will be meaningless since it is always beneficial for data controllers to keep the data accessible even if it means it is only accessible by the technical IT personnel.

Applicability to Foreign Data Controllers

According to the Law, a "data controller" is a person who, either alone or with others, controls the content and use of personal data. In other words, all businesses processing or using personal data for or while conducting their activities are deemed a data controller.

As per article 5(b) of the Draft Regulation on Registry, a data controller which has no presence (office) in Turkey is still obliged to register to the data controllers' registry through a data controller representative before processing personal data in Turkey. The Q&A document also states that the Law is applicable to a data controller who is located abroad if it conducts activities in Turkey requiring processing of personal data. In light of the above, we understand that if the Draft Regulation on Registry enters into force in its current form, a foreign business conducting personal data processing activities (e.g. collecting personal data) in Turkey will be required to appoint a data controller representative and comply with the registration requirement provided that no other exemptions are applicable to that specific business. The Draft Regulation on Registry defines data controller representative as a legal entity residing in Turkey or a citizen of the Republic of Turkey. This means, Draft Regulation on Registry sets forth the extraterritorial application of the Law, however it is widely criticized as (Draft Regulation) being contradictory to the intention of the Law in this respect which does not impose a strict obligation to appoint a representative for this purpose as for foreign data controllers.

Registration Requirement and Nature of the Data Controller

The Law does not provide any distinction between real or legal persons who process personal data in terms of registration requirement. The Draft Regulation on Registry sets forth a requirement for all data controllers to become registered in case they conduct personal data processing activities (e.g. collecting personal data) in Turkey. For the registration process, a data controller shall first, prepare a personal data inventory. Under the Deletion Regulation, personal data inventory is defined as inventory which shall be prepared by a data controller in detail through associating with their personal data processing activities related to their business processes, purpose of processing personal data, data category, transferred recipient groups, data subject group, data categories which will be transferred abroad, maximum term to keep data under certain categories and protective measures.

Under the Draft Regulation on Registry, there are some general exemptions from the registration requirement provided as for institutions engaging in certain activities such as; prevention or investigation of a crime or performance of supervisory or regulatory duties. In addition, the PDPA has the authority to bring specific exemptions to the registration requirement as for parties processing personal data. Some of the exemption criteria set forth under the Draft Regulation on Registry are generic such as nature and number of the data processed, purpose of data processing, field of activity on which the data is processed, etc. In addition, there are two important criteria which will play a tremendous role in determining who will need to register. These criteria are set forth as; a) the annual turnover and b) the number of employees of the data controller but the specifics of these criteria as well as the above indicated generic ones are not yet defined by the PDPA.

The Q&A explains that a holding company processing millions of data and a small family-owned business may not be considered equal in terms of registration requirement. Apart from registration requirement, Q&A also states that the general principles and provisions of the Law on protection of personal data, namely obligation towards the individual whose data is being processed are equally applicable to all data controllers despite their size.

Despite this additional information provided by the Q&A, there is still a significant degree of uncertainty on which businesses will be subject to the registration requirement which is by far the most important question concerning practice of the Law.

The Status of a Group of Companies under the Law

Q&A explains that transfer of data between legal entities in the same corporate group will be treated same as if transfer to an unrelated third party. In other words, there is no exception for intra group transfers under the Law. This raises an important issue of whether each group company must individually establish and maintain a data protection system which inevitably will mean duplicate cost for the group as a whole. Q&A sets forth that each group company will be considered individually as a data controller "when such company itself determines its own objectives for personal data processing". Having said that there is no definition and/or criteria on what the term "determination its own of objectives" mean therefore it is uncertain whether it is possible for sister companies (especially those who are under 100% control of the same parent) whose management does not have a separate system for personal data processing and keeping a data registry system, to claim that it is not a data controller itself but instead the holding company.

Status of Third Parties to Whom the Data to be Transferred

An important debate with respect to the obligation to inform a data subject to procure its consent thus, the "clear consent" requirement is on whether it is necessary to specifically provide the data subject with the name and title of each third-party to whom the relevant personal data is being transferred. Since "clear consent" is required to be specific, there are strong arguments suggesting the necessity of specifying each transferee's identity when data subject is informed. Q&A indicates that it will be sufficient to define third-party transferee only by its field of activity/occupation. As an example, according to the Q&A, it is sufficient for a data controller to only inform data subject that it will transfer his/her personal data to their lawyers, couriers, group companies by indicating their field of activity and necessity of transfer.

The Status of the Data Processor

According to the Law, "data processor" means a person processing data on behalf of a data controller. Q&A explains that data processor is a person outside the organization of a data controller. It is further expressed that a real or legal person may both be a data controller and a data processor in terms of its different operations and activities.

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.

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