While European Union's data protection regulations date as far back as to 1995, Turkey recently announced the enactment of the Turkish Law on the Protection of Personal Data after a decade of legislative process. Pursuant to the Turkish Law on the Protection of Personal Data, the Data Protection Authority ("DPA") was also established as the main regulatory body responsible for data protection in Turkey. Prior to the Turkish Law on the Protection of Personal Data, the data protection regime in Turkey had been governed by other legislation such as the Turkish Criminal Code, the Turkish Civil Code as well as sectoral specific laws such as the Law on Regulation of Electronic Commerce and the Banking Law. It should be emphasized that the aforesaid legislation relating to data protection is still in effect, but the general framework of the data protection regime shall be governed by the Turkish Law on the Protection of Personal Data ("Data Protection Law").
As Turkey has an obligation to harmonize its laws with the acquis communautaire as part of its full membership negotiations, the Turkish data protection legislation is quite similar to the EU's data the Data Protection Directive 95/46/EC. Considering that the efficiency of the EU's data protection regulation and the effectiveness of the applicable fines relating to it have long been debated, it would not be wrong to argue Turkey was late to enact the Data Protection Law and to observe its effects. That being so, the EU had already adopted the General Data Protection Regulation to replace the Data Protection Directive 95/46/EC
The Data Protection Law empowers the DPA to enforce the legislation in a strict manner and to impose an administrative fine between TRY 5,000 (approx. EUR 1,100) and TRY 1,000,000 (approx. EUR 214,000) for non-compliance. Having said that, the DPA is under the obligation to provide guidance on the application of the rules so as to prevent any uncertainties.
Similar to the process of the enactment of the Turkish Competition Law and the establishment of the Turkish Competition Authority, the DPA is expected to become one of the most active public institutions in Turkey. Accordingly, the DPA published various regulations (e.g. on the registry of controller, the working principles and rules of the Data Protection Board ("Board"), and erasure, destruction or anonymizing of personal data) and several guidance papers (e.g. regarding the erasure, destruction or anonymizing of personal data, explicit consent, and transfer of personal abroad) whereas it announced only two resolutions:
- Decision (dated 21 December 2017 and numbered 2017/61) in relation to the lack of explicit consent for data processing.
- Decision (dated 21 December 2017 and numbered 2017/62) in relation to taking necessary technical and administrative measures to prevent the existence of unauthorised third parties at the counter or desk and to hinder persons from hearing/seeing/learning/possessing each other's personal data while being served.
It should be mentioned that according to the Data Protection Law, the DPA is not under obligation to publish all its decisions except the ones in which the infringement is widespread, that is why the actual number of the decisions rendered by the DPA is uncertain.
As the potential administrative fines are onerous as per the Data Protection Law, designing an effective system within a company to ensure compliance with the data protection rules and thus minimizing the risks associated with non-compliance have become one of the central concepts, particularly for the multinational companies that have operations in Turkey.
How to Design a Data Protection Programme:
As for the compliance aspect of the issue, firms are required to take all necessary measures to comply with the Data Protection Law. The Guideline on Personal Data Security which was published on the DPA's website may be considered as a starting point for designing an effective compliance program.
- Have a Data Protection Policy
Firms need to establish a data protection policy or update the current one as soon as possible to comply with the Data Protection Law. Indeed, ensuring the effectiveness of such a policy is vital. All existing agreements and documents need to be reviewed with the participation of the responsible department to ensure that they are in compliance with the Data Protection Law. If any infringing clauses, statements or conditions are found within those documents, firms need to take the necessary steps to comply with its notification obligation and to remedy the issue before any further breaches. On the other hand, the Data Protection Law does not grant any intra-group processing activity, thus all entities in the group are responsible for their own data protection.
- Data Protection Risk Assessment
Firms need to analyse the characteristics and risks of the sector they are operating in as a part of their data protection compliance programme to understand their operations' risk level. In other words, by determining the risk level of data, firms can effectively take the necessary measures to comply with the Data Protection Law and use their resources effectively. Since the DPA has so far been observing the markets and has yet to interfere, the sectoral laws and practises can serve as guidelines for the firms to determine the best practises for data protection. Including but not limited to above requirements, in order to ensure detection of breach ex-ante, carrying out continuous audit internally and establishing report mechanisms are also essential.
- Legal Framework for Processing of Personal Data and Personal Data of Special Nature
According to the Data Protection Law, "all information relating to an identified or identifiable natural person" is defined as personal data and such data shall not be processed without the explicit consent of the data subject. Additionally, processing of data is defined as "any operation performed on personal data including but not limited to collection, recording and transferring". Processing of personal data without explicit consent is allowed under certain conditions, such as if it is clearly provided for by the laws or if it is mandatory for the protection of life or physical integrity of the person or of any other person who is bodily incapable of giving his consent or whose consent is not deemed legally valid. Additionally, personal data relating to race, ethnic origin, political opinion, philosophical belief, religion, sect or other belief, clothing, membership in associations, foundations or trade-unions, health, sexual life, convictions and security measures, and biometric and genetic data are deemed to be personal data of special nature under the Data Protection Law and again subject to explicit consent of the data subject. Lastly, personal data relating to health and sexual life may only be processed by any person or authorised public institutions and organizations that have confidentiality obligations and for protection of public health, operation of preventative medicine, medical diagnosis, treatment and nursing services, planning and management of health-care services as well as their financing without seeking consent.
- Rights of the Data Subject
According to the Data Protection Law, the natural person, whose personal data is processed defined as the "data subject" and granted by certain rights in the Data Protection Law. Within this scope, data subjects shall be informed regarding their data such as whether their data is processed and if so, the purpose of processing the data and other information including whether his/her data is transferred abroad or domestically. Moreover, the data subject has the right to correct his/her personal data if processed wrongly. Also, the data subject may request the erasure or destruction of his/her personal data under the conditions laid down by the Data Protection Law.
- Training the Staff
Also, the quintessential aspect of the data protection policy should be, along with the operation and the assets of the firm, raising awareness of the firm's staff regarding data protection. The lack of properly trained staff might waste firms' investment in data protection policy and poses a risk of potential sanctions. Further, departments such as HR, marketing or IT are required to undergo more rigorous training regarding data protection since their daily activity is more data-oriented. Also, accessing personal data platforms by staff can be segregated based on department's relevancy. Lastly, periodical/random internal auditing of data compliance could raise awareness of the staff as well as to uncover any potential problems in terms of data protection.
- Analysing the Status of Data and Cybersecurity
As some data can be out-of-date, firms need to reanalyse the relevancy and up-to-datedness of the data they process. Also, having and processing less data always mitigates the risk level of a firm. In addition, to ensure the cybersecurity of the firm, rather than having one cybersecurity measure, multiple and supplementary cybersecurity measures are always preferable in this regard. Moreover, if the data are physically collected such as paper, USB drives, CDs/DVDs, then additional physical security measures must be taken, for instance, recording the access to that physical platforms, locking down the entrance when it is not used. On the other hand, if data are collected in cloud systems, encrypting the access to the cloud(s) as well as encrypting the data are suggested. According to Article 12 of the Data Protection Law, if the processed data are collected by other parties illegally, the controller shall notify the data subject and the Board within the shortest time. However, the type of breach such as technical or administrative was not specified, nor the meaning of the shortest time. Therefore, it shall be expected that the future precedents of the DPA shall clarify the issue.
- Transferring the Data
As a rule, the Data Protection Law seeks the explicit consent of the data subject for data transfer. However, personal data may be transferred without explicit consent if certain conditions are met such as: if it is clearly provided for by the laws or mandatory for the protection of life or physical integrity of the person or of any other person who is bodily incapable of giving his consent or whose consent shall not be deemed as legally valid. For data of special nature, the same rule applies if sufficient measures to transfer data of special nature are taken. However, the definition of sufficient measures is also ambiguous.
For transferring data abroad, the Data Protection Law follows the same approach and seeks explicit consent. Similarly, for transferring personal data abroad without explicit consent, the above conditions are still required along with the existence of sufficient protection in the foreign country. If sufficient protection is not provided, then the controllers in Turkey and in the related foreign country must guarantee sufficient protection in writing and the Board must authorised such transfer. The Board shall determine and announce the countries which have a sufficient level of protection. Moreover, when authorizing the transfer of data abroad, the Board shall consider certain factors such as, the international conventions to which Turkey is a party, reciprocity status relating to data transfer, the nature, purpose and duration of processing of data case by case, the relevant legislation and implementation by the foreign country, the protection guaranteed by the controller in the foreign country. Additionally, if the data transfer may harm the interests of relevant individual(s) or Turkey, the Board must take the opinion of public institutions and authorize the transfer. The DAP has not published any list in this regard. Provisions of other laws concerning the transfer of personal data either domestically or foreign, are reserved. At this point, Turkey has no specific rules regarding data transfer agreements. Therefore, the Data Protection Law, along with the Code of Obligations and, if the agreement has a foreign element, International Private and Civil Procedure Law shall be applicable.
As the above findings suggest, data protection is highly significant and requires a tailored approach for firms' compliance with the Data Protection Law. However, since the data protection regime is so new in Turkey, vague language of the Data Protection Law is still an issue and some terms need to be defined for clarification. Moreover, even though there has been no fine imposed on a firm in Turkey and the DPA's approach is still ambiguous: fines ranging from TRY 5,000 (approx. EUR 1,100) to TRY 1,000,000 (approx. EUR 214,000) can pose a risk for firms. Also, since the DPA is not under the obligation to publish its decisions, firms can also be dealing with hardships to comply with the implementation of the Data Protection Law. Though said deficits currently exist, firms need to start establishing or updating their data protection policies to comply with the Data Protection Law's requirements to prevent possible sanctions by the DAP.
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.