Turkey: Turkish DPA Warns With Principle Decision On Promotional Communications

A. Introduction

On November 1, 2018, Personal Data Protection Board ("Board"), acting under the Personal Data Protection Authority, published its principle decision with number 2018/119 in the Official Gazette, which then corrected on November 7, 2018 ("Decision"). Board's Decision is regarding prevention of promotional notifications, e-mail messages, text messages and calls that data subjects might receive from data controllers and data processors.

B. Rationale

In the beginning of the Decision, the Board indicates that they received numerous complaints based on the Law No. 6698 on Protection of Personal Data ("Law No. 6698") from individuals, who claim to have received promotional and advertorial calls, text messages, e-mail messages from parties, whom they did not give consent for such communications.

The Board also indicates that, upon receiving such complaints, an investigation has been conducted on the matter by the Board, results of which were used for determining the principles set forth in the Decision.

C. Obligations of Data Controllers & Processors

I. Cease of Activity

The Decision orders data controllers, which direct promotional communications to data subjects without obtaining data subjects' consents or without meeting the conditions under Article 5/2 of the Law No. 6698, to immediately cease such processing activities immediately. Additionally, the Decision also orders data processors that send such communications on behalf of data controllers, to cease their data processing activities immediately, as well.

The Decision lists sending text messages to or calling data subjects phone numbers; and sending e-mails to data subjects; as methods of communication. Although, the wording of the Decision appears to be limited to these methods of communication, considering the purpose of Board's decision, one might argue that the Board will highly likely apply this principle to every other form of electronic communication, provided that it is promotional and/or advertorial and the conditions of the Law No. 6698 are not met.

In this order, the Board refers to its authority under Article 15/7 of the Law No. 6698, which entitles the Board to decide on cease of data processing or transfer of data abroad, if there is an obvious violation of laws and there are irrevocable damages or damages that are hard to recover. In that sense, one might argue that the Board evaluates such activities as violations of the Law No. 6698 and is inclined to interpret such activities as damaging to data subjects, which might be used against data controllers within the scope of claims by data subjects pertaining to non-pecuniary damages.

II. Precautions

By referring to Article 12 of the Law No. 6698, the Decision explicitly states that data controllers are obliged to take all technical and administrative measures in order to ensure an adequate level of security for the purposes of (i) preventing unlawful processing of personal data, (ii) preventing unlawful access to personal data; and (iii) protecting personal data.

Furthermore, it is also noted in the Decision that if personal data is processed by another real person or legal entity on behalf of the data controller, the data controller shall be jointly liable with the data processor for taking the foregoing measures.

III. Sanctions

The board states that they will impose the measures provided under Article 18 of the Law No. 6698 for those who conduct such processing activities, which sets forth administrative fines for those who fail to comply with certain obligations under the Law No. 6698.

The Board also warns that, taking into account the possibility that personal data process for such activities might be collected unlawfully, they will notify the relevant public prosecutor's office, so that criminal proceedings could be initiated for the crime of illegal dissemination and seizure of data in accordance with Article 136 of the Turkish Criminal Code, under which illegal seizure, transfer or dissemination of personal data constitutes a crime under and is subject to an imprisonment up to four years.

Although the Decision does not explicitly indicates any time period for data controllers and processors to cease their activities found to be in violation of the Law No. 6698, it is implied in the Decision that the Board is not eager to punish on-going activities of data controllers and processor, but merely confines itself to warn and urge them to cease such activities and act in accordance with their obligations within the scope of the Law No. 6698.

IV. Checklist for Compliance

Please find below a short checklist of items that might be considered by data controllers before sending out promotional communications, for the purposes of compliance with the Law No. 6698 and Board's principle decision.

  1. Taken necessary precautions and measures to protect the contact information which will be collected from data subjects (such as creating a dedicated storage space for the relevant data, limiting the number of personnel accessing such data to senior marketing managers etc.),
  2. Informed data subjects about using their contact information for promotional communications before or, at the latest, during collection of their personal data and recorded such notice for evidential purposes (be it on paper with data subject's signature, a voice record or vie electronic logging),
  3. If using contact information collected previously for other purposes where data subject might not be reasonably expected to know that it might be used for such communications, informed data subject about using their contact information for this new purpose, before starting processing activities for that purpose; and recorded such notice for evidential purposes,
  4. Have a legal basis for using their contact information for such communications (please see the table above for the list of valid legal grounds),
  5. If not, obtained data subject's explicit consent; and recorded such consent for evidential purposes.

Please note that data processors should also consider whether the data controllers, on whose behalf they process personal data and send promotional communications, are in compliance with the Law No. 6698; and vice versa, since they are both jointly liable for violations of the Law No. 6698, as explained above.

In any case, it is clear that individuals are starting to take control of their personal data more and more, as legislations provide them with new ways to exercise their rights. The Board's decision show that complaints from individuals impelled the Board to act on its authority and warn data controllers and processors about the current state of affairs with respect to their promotional 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.

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.

Similar Articles
Relevancy Powered by MondaqAI
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
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Sign Up
Gain free access to lawyers expertise from more than 250 countries.
Email Address
Company Name
Confirm Password
Mondaq Newsalert
Select Topics
Select Regions
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.


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.


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