Turkey: Data Controllers' Handbook to Inform Data Subjects About Their Rights

Under the Turkish data protection law ("DPL"), data subjects have the right to learn who processes their personal data, the purposes and legal bases of these processing activities, and to whom and for what purposes such personal data are transferred. These rights arise from the data controllers' obligation to inform data subjects about their processing activities. During the collection of personal data, the data controller or any other person authorized by the data controller is obliged to provide data subjects with certain information, such as the identity of the data controller and of his representative (if any), the purposes of the processing, to whom and with what purpose the processed personal data can be transferred, and the method and legal reason/basis of collection. The same article of the DPL further requires data controllers to provide information to data subjects about certain other rights, as discussed below.

Data subjects have the right to know the third parties within or outside the country to whom personal data are transferred, and to ask for the rectification of any incomplete or inaccurate personal data processing as well. They may also request the erasure or destruction of their personal data (within the framework of the conditions set forth under Article 7) and request the notification of these operations to third parties to whom personal data have been transferred. According to this law, data subjects have the right to object to any consequence or situation that is to his/her detriment that results from an analysis of the processed data exclusively by means of automated systems, and to request compensation for the damages incurred due to the unlawful processing of personal data.

Interpretation of These Provisions

The Turkish Data Protection Authority has published the Communiqué on the Procedures and Principles for Compliance with the Obligation to Provide Information ("Communiqué")[1] in order to provide guidance for the interpretation of these articles.

The Communiqué sheds light on the methods to be used for providing information and specifies that data controllers may provide information to data subjects either physically or by using electronic means (e.g., verbally, in written format, by voice recordings, or through call centers), and also clarifies when data subjects must be informed. According to the Communiqué, data controllers are obliged to inform data subjects of their rights in all cases or circumstances in which their personal data is processed. Furthermore, they must also inform data subjects whenever the purpose of processing changes, prior to starting the data processing activity. For instance, if a data controller processes a data subject's address information for the purpose of delivering the goods/services that the subject has ordered and will further process the same address information for marketing purposes in the future, then it needs to inform the data subject since the purpose of the data processing activity will change.

If different divisions/units of a data controller process personal data for different purposes, then the data controller must inform data subjects separately for each purpose. For instance, if the name, last name and phone number of a data subject is processed by the marketing department of a company for marketing purposes, and the same personal data is also processed by the human resources department to evaluate the job application of that data subject, then the data subject must be informed of both processing purposes.

The information that the data controllers provide to the Data Controllers' Registry must be in line with the information they provide to the data subjects. It is also extremely critical for data controllers to realize and keep in mind that compliance with the obligation to provide information does not require the data subject's prior request, and that the burden of proof is on the data controller to show that it has complied with all its obligations under the law.

The Communiqué also states that the explicit consent of data subjects must be obtained separately from the information provided to data subjects. In other words, data controllers are not allowed to obtain explicit consent from data subjects by using the same text or document with which they inform them.

Personal data must be processed for specific, explicit and legitimate purposes. Similarly, data controllers must also be clear and specific when providing information to data subjects, and they should avoid deficient, misleading or inaccurate statements. Moreover, they must steer clear of ambiguous or broad terms in the information provided to data subjects. For example, data controllers should not state that the personal data of data subjects might be processed for marketing purposes in the future. Rather, data subjects should be informed of the purpose for which their personal data is processed, not the possible purposes that might arise in the future. It should be noted that ambiguousness/vagueness is a crucial red line when it comes to providing information to data subjects, and data controllers must avoid such ambiguity whenever possible.

In addition, the information that will be communicated to data subjects must include: (i) the legal purpose of the personal data processing (in other words, the basis of the data processing activity), (ii) the recipients of the personal data, and (iii) the purpose of the data transfer.

While data controllers are required to provide data subjects with information about the processing of their personal data prior to data collection, this may not always be possible in practical terms. If personal data is obtained from an indirect source, such as the news media or public records, then data controllers must fulfill their obligation to provide information to data subjects (i) within a reasonable period of time after the personal data is obtained, (ii) in the first communication, if the personal data is obtained for the purpose of communicating with the data subject, and (iii) if the personal data is to be transferred, then at the first moment that the personal data is being transferred, at the latest.

Comparison of the DPL and the General Data Protection Regulation ("GDPR")

The GDPR, which has entered into force on May 25, 2018, also brings similar requirements for data controllers. Some of the information stipulated under the GDPR which data controllers are required to provide to data subjects are not included in the DPL, such as (i) the right of data subjects to withdraw their consent at any time, (ii) the right of data subjects to lodge a complaint with a supervisory authority, and (iii) storage periods and the criteria used to determine the duration of such data storage, even though data subjects do, in fact, have those rights under the Turkish data protection legislation.

Another difference between the GDPR and the Turkish data protection legislation concerns indirect data collection practices. According to the GDPR, when personal data is collected indirectly, data controllers are not obliged to inform data subjects of such activity if (i) it is impossible, or (ii) it requires disproportionate effort, or (iii) it would render impossible or seriously impair the purpose of the data processing. Neither the DPL nor the secondary legislation in Turkey sets out similar exceptions or follows the GDPR on this issue. However, in practice, if a data controller is unable to inform data subjects about indirect personal data collection despite its best efforts and can demonstrate its efforts (i.e., show that it has genuinely attempted to inform data subjects), such activities should not raise any legal concerns under the DPL either. Nevertheless, keeping in mind that there is no clear definition of "sufficient effort" or provisions regulating this matter in the DPL, one cannot exclude the possibility of a data controller facing sanctions in this context.

Despite these differences, the GDPR requires data controllers to use clear and plain language in communicating with data subjects, similar to the DPL, and to provide data subjects with the information regulated under the DPL.

Conclusion

Interpreting the obligation to inform data subjects correctly is of paramount importance to data controllers, since failing to fulfill the obligation to provide information may result in an administrative fine ranging from 5,000 Turkish Liras up to 100,000 Turkish Liras. Therefore, data controllers should implement the Communiqué with the utmost care and be able and ready to demonstrate that they provide data subjects with the necessary information in order to fulfill their legal obligations and avoid such administrative penalties.


[1] See http://www.resmigazete.gov.tr/eskiler/2018/03/20180310-5.htm, last accessed on May 25, 2018.

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
 
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
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