With globalization and digital transformation, unrestricted data flow has become a fundamental aspect of international trade and operations. However, the clash of different legal systems and privacy standards has turned the international transfer of personal data into a complex domain. While regulations in Türkiye offer a framework aligned with international standards, they also necessitate the development of compliance strategies.
Under the Personal Data Protection Law No. 6698 ("PDPL"), the legislator stipulates two main conditions for international data transfer: obtaining the explicit consent of the data subject and ensuring adequate safeguards approved by the Personal Data Protection Authority ("Authority"). In this process, the Authority evaluates the adequacy of data protection standards in the destination country. Furthermore, data controllers may apply to the Authority with a "Commitment" to facilitate cross-border data transfers. The "Commitment" mechanism is frequently used to meet protection standards, allowing data controllers to comply through either the consent of the data subject or Authority-approved technical and administrative measures.
The concept of explicit consent required for transferring personal data abroad is included in Article 3 of the PDPL. Explicit consent is a widely used compliance mechanism in Turkish law. However, such consent must be given freely, for a specific purpose, and based on information. Particularly in international data transfers, the accurate formulation of explicit consent is critical for legal validity. In other words, under Article 9(6)(a) of the PDPL, the legislator mandates that the data subject must be informed about potential risks before giving explicit consent for the transfer.
Turkish law aligns with international regulations, especially aiming for compliance with the European Union's General Data Protection Regulation ("GDPR"). Standard Contractual Clauses ("SCCs") and Binding Corporate Rules ("BCRs") envisaged by the GDPR are mechanisms that companies in Türkiye can use for international data transfers. In this context, the Schrems II decision of the European Court of Justice, delivered on July 16, 2020 ("Decision"), has had significant implications for data protection and international transfer processes for both the EU and Türkiye.
The Schrems II Decision invalidated the "Privacy Shield" mechanism that facilitated personal data transfers between the US and the EU on the grounds of non-compliance with GDPR. The primary reason was the inadequacy of US laws in providing sufficient protection for the personal data of EU citizens. The surveillance laws in the US exposed insufficient privacy safeguards for EU citizens' data, raising significant concerns regarding security and privacy in international data transfer processes.
The Decision made it mandatory for companies wishing to transfer data from the EU to the US to use mechanisms such as SCCs and BCRs. However, implementing these mechanisms requires additional security measures. This has led multinational companies to reassess their data protection practices and handle compliance processes more meticulously.
The Schrems II decision has impacted not only EU-US relations but also data controllers in Türkiye. The applicability of mechanisms like SCCs and BCRs in Türkiye's international data transfers is evaluated within the PDPL compliance framework, necessitating additional security measures by companies. In this respect, the Decision compels companies operating in Türkiye to align with international standards and strengthen their data protection policies.
In conclusion, the Schrems II Decision is considered a turning point in the field of international data transfer, reshaping data protection practices at both national and international levels. Accordingly, Turkish law and regulatory practices provide a GDPR-compliant framework that focuses on enabling data controllers to meet global standards.
On the other hand, practices in Türkiye also encompass technical and administrative measures to safeguard data security and privacy. Methods such as encryption, anonymization, and access control are frequently utilized in international data transfers. Especially for transferring sensitive data, applying these measures has a positive impact on evaluations by the Authority and on compliance with international standards.
In this context, PDPL and its secondary regulations mandate companies to prepare personal data inventories, regularly review their data processing activities, and document these processes. Keeping detailed records of all phases of data transfer plays a critical role in audit processes and maintaining compliance. Violations of PDPL in transferring personal data abroad may result in administrative fines ranging from TRY 71,965 to TRY 1,439,300 as of 2025 and may even lead to the suspension of data processing activities if necessary.
In conclusion, the legal framework in Türkiye provides a comprehensive structure that strengthens personal data protection. These regulations encourage alignment with international standards and direct data controllers to continuously enhance their technical and administrative measures. Adopting a balanced approach to international data transfers, ensuring regulatory compliance while maintaining operational flexibility, has become a critical priority for sustainable business processes.
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