Although Turkish Data Protection Authority ("Authority") and Turkish Data Protection Board ("Board") do not stand a deep-rooted past in Turkey, we have been introduced with several developments regarding secondary legislation and decisions and administrative fines shedding some light on the compliance with such legislation in a short span of time. You may find our article on the recent Board decisions here.
After its well-known Facebook decision, the Board published three new decisions related to the administrative fines imposed on Clickbus Seyahat Hizmetleri A.Ş. ("Clickbus"), Marriott International Inc. ("Marriott") and Cathay Pasific Airway Limited ("Cathay Pacific") which we will summarize below.
1) Clickbus Decision
The Board first referred to two data breach notifications sent by Clikbus to the Authority dated 07.02.2019 and 29.03.2019 where Clikbus mainly stated that:
- They detected some suspicious activities related to their internet platforms upon the warning of Amazon Web Services (AWS) stating that there may be a malicious activity on their internet systems,
- They suspected that there may be activities in their information systems which could jeopardize data security and initiated an internal examination with the help of digital forensics experts and a report has been prepared in this regard,
- During this examination, it is determined that there have been some malicious files on the examined servers and some source code files have been modified in a way that includes having malicious code that allow remote access to Clickbus servers and
- It is understood from the analysis conducted on the logs and systems located in AWS system that the data leakage from Clickbus sources occurred between 25.09.2018 and 25.11.2018.
Having reviewed and evaluated these notifications, the Board concluded to impose two administrative fines on Clickbus (i) TRY 450,000 for not taking necessary technical and administrative measures to ensure the data security and (ii) TRY 100,000 on the grounds that Clickbus failed to meet its obligation to inform the affected data subjects as soon as possible given that they notified the Board on 07.02.2019 whereas the affected data subjects were notified on 25.02.2019, by taking into account the following facts:
- There are 67,519 Turkey-based people affected by the said breach,
- The personal data of the affected data subjects are comprised of different categories of personal data including identification data, communication data, customer activities data,
- The continuity of the breach during the two month's period between 25.09.2018 and 25.11.2018 implies that the Company did not conduct necessary investigations and checks,
- The continuity of the breach for four days as of the detection date of the breach implies that the administrative measures taken by the Company were not adequate,
- The fact that the unauthorized persons were able to access to the Company's source code is a severe security flaw.
2) Marriott Decision
In its Marriott decision, the Board first referred to the following main facts stated in the two notifications sent by Marriott to the Authority on 04.12.2018 and 28.03.2019:
- The acquisition of Starwood, which includes several hotel brands under the Company, by Marriott in September 2016,
- There has been an authorized access to the network of Starwood where guest data were stored as of July 2014, which was detected on 08.09.2018,
- The client reservation database of Starwood was only used for the reservations within Starwood hotels not Marriott's,
- There are 1,24 million Turkey-based client records among its 383 million clients,
- Marriott detected that there was a command prompt installed in the web server and an authorized access to Starwood network, and after such an authorized access there was a trojan horse program (RAT) installed in the web server which could allow remote access thereto and
- A separate webpage was created in order to inform the data subjects affected by the data breach,
In light of the abovementioned facts, the Board imposed two administrative fines on Marriott (i) TRY 1,100,000 for not taking necessary technical and administrative measures to ensure the data security and (ii) TRY 350,000 on the grounds that Marriott failed to meet its obligation to inform the affected data subjects as soon as possible given that they notified the Board on 03.12.2018 and started to notify the affected data subjects as of 30.11.2018 about the data breach that was detected on 08.09.2018, by considering the following facts:
- There are many hotels among the Starwood hotels in Turkey,
- The continuity of the data breach for a period of four years is an indicator of a severe data security flaw and shows that Marriott did not conduct necessary controls,
- The data affected by the breach includes information such as name, e-mail address, date of birth, passport number, payment card details and communication preferences etc.,
- The fact that there have been many unencrypted payment card numbers implies that the system was not duly planned at its design stage and that necessary controls were not conducted and this situation is considered as a security flaw that may raise negative effects on the data subjects,
- There are 1,24 million Turkey-based client records, however exact number of the Turkish clients affected by the data breach was not determined since there are more than one records related to the same client,
- The gradual process of the data breach that could not be detected by the Company reveals the inadequacy of the technical and administrative measures and
- The fact that the data breach could not be detected despite the log records showing the unauthorized access and the command prompt, which existed as of 2014, concretely implies that necessary technical administrative measures were not taken by the Company.
3) Cathay Pacific Decision
Cathay Pacific mainly stated the following facts in its notifications sent to the Authority on 25.10.2018 and 08.03.2019:
- An unauthorized access to the information systems including passenger information via computer networks occurred on 13.03.2018 and such unauthorized access was detected by the Company on 07.05.2018.
- The unauthorized access was carried out by remote and obtained some documents that could be considered as the partial backup database of the Customer Loyalty System, and accessed to the webpage admin desk in order to see the customer payment and the activity data and to copy of the backup database.
- The examination conducted by the Company revealed that the data breach occurred due to the unauthorized access and they suspected that it may have been carried out by two different groups considering the means, strategies and procedures used during the attacks.
- The first group used the BRIO server to access the Customer Information System and Cathay Pacific could not detect the forced access of the first group to the company network and the Company suspected that the first group moved sideward within company network.
- The second group accessed to the backup documents of the Customer Loyalty System and Online Business Service Platform and the webpage admin desk.
- The personal data affected by the said breach was not only belonged to the Cathay Pacific passengers but also to the passengers of its affiliate Hong Kong Dragon Airlines Limited and Asia Miles and Marco Polo Club members,
- There were 1,286 people affected by the data breach and passport numbers of 155 Turkey-based people were accessed.
- The personal data being accessed unauthorizedly included name, race, date of birth, previous flight details etc. and such affected data was subject to change depending on each data subject.
- The company directly reached the affected data subjects via e-mail and website and they created a free customer call service and customer service centre for a month and allocated a special e-mail address for ease of the affected data subjects.
The Board concluded that (i) the fact that the breach was detected by the Company after two months as of being informed on the suspicious activities refers to a security flaw and means that the Company did not carry out necessary controls and (ii) such sideward movement through the systems reveals the inadequacy of the security measures taken by the Company and the unduly configuration of the Company hardware and software.
The Board therefore imposed on two administrative fines on Cathay Pacific (i) TRY 450,000 for not taking necessary technical and administrative measures to ensure the data security and (ii) TRY 100,000 on the grounds that Cathay Pacific failed to meet its obligation to inform the affected data subjects as soon as possible given that they notified the Board on 25.10.2018 and started to notify the affected data subjects as of the same date about the cyber-attack that occurred on 07.05.2018.
As can be seen from all of the three decisions, the Board imposed administrative fines on the companies on two grounds that the companies failed to take necessary measures to ensure the data security and they failed to notify the data subjects as soon as possible in accordance with the Data Protection Law.
As for the notifying period, it is important to note that the Board considered 18 days too long in terms of the obligation to inform the affected data subjects. Meaning that, data controllers should show the utmost effort to inform the affected data subjects as soon as possible in order to not to face with administrative fines. The Board indeed pays attention to the number of the affected people and the categories of personal data that are subject to data breach. Therefore, we recommend data subjects to review their data processing and storage system to ensure the minimization of the affected categories of personal data and the number of data subject in case of a cyber-attack. It should also be noted that the Board referred to the configuration of the software/hardware which allowed the sideward movement within the network in the Cathay Pacific decision. Hence, it is also important to configure the company systems in a way that prevents back-to-back unauthorized accesses.
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.