The Law No. 6698 on the Protection of Personal Data ("DP Law"), which came into force on 7 April 2016, imposes administrative fines on those who fail to fulfill the obligations set out by the DP Law. The administrative fines range from 5,000 up to 1,000,000 Turkish Liras. The DP Law does not provide guidance as to the methods of calculation or the criteria to be used by the Personal Data Protection Board ("Board") for deciding on the amounts of administrative fines.
The calculation of these administrative fines is currently at the discretion of the Board, which will determine them in accordance with the general criteria set out by the Law No. 5326 on Minor Offences. That law states that if an administrative fine is regulated by guidelines indicating the minimum and maximum amounts that could be imposed, then (i) the wrongful content of the minor offence, (ii) the perpetrator's fault, and (iii) the perpetrator's financial status are to be taken into account in the calculation of the administrative fine to be issued. However, these criteria alone are insufficient for the proper calculation of administrative fines under the DP Law. Currently, there is no precedent or clear guidance on the calculation of these fines or the potential consequences of data protection breaches in Turkey.
With that said, it is reasonably foreseeable that the practice in Turkey will, to a certain extent, be similar to the practice in Europe, considering that the DP Law was prepared in light of the European Union's Data Protection Directive (Directive 95/46/EC) ("Directive"). Therefore, it would be useful to look at the cases related to data protection breaches in the Member States and examine the sanctions imposed in those cases, in order to understand the practice in the European Union, which can provide much-needed insight with respect to the implementation of administrative fines in the Turkish jurisdiction.
In April 2017, the British Data Protection Authority ("ICO") fined 11 charities, including Cancer Research UK, Macmillan Cancer Support, Oxfam, International Fund for Animal Welfare and the National Society for the Prevention of Cruelty to Children (NSPCC), for breaches of the data protection law. The charities had given out the personal data of their donors and supporters to wealth-screening companies in order to rank them based on their wealth. Furthermore, they had matched the telephone numbers and e-mail addresses with the names of their supporters, and had shared their supporters' data with other charities as well. The penalties imposed on the charities ranged from £6,000 (Oxfam) up to £18,000 (International Fund for Animal Welfare).
Oxfam was fined for using data-matching techniques to obtain information such as telephone numbers, which had not been provided by its supporters, by exploiting other personal data that the supporters had given. Oxfam admitted that it had "tele-matched" a total of 267,521 records of donors and that it had used these telephone numbers to make marketing calls without informing the individuals in question that their data would be processed in this way. ICO was satisfied that these practices constituted a serious contravention of the law, taking into account (i) the length of time during which the practice took place, (ii) the number of data subjects whose rights had been infringed, and (iii) the fact that the data subjects were likely to have been significantly affected by the contraventions in practical ways, such as by receiving additional marketing communications from Oxfam. Consequently, ICO decided to impose a monetary penalty. ICO evaluated the mitigating and aggravating factors in determining the amount of the penalty.
The mitigating factors were set out as follows: (i) Oxfam's cooperation with ICO's investigations, (ii) the fact that Oxfam is a charity and sought to further its objectives in the public interest, (iii) the fact that Oxfam had taken remedial action, (iv) Oxfam's practice may have reflected, to an extent, commonplace approaches in the charitable sector, and (v) the proposed monetary penalty may have negative reputational consequences.
On the other hand, there were certain aggravating factors as well, including the following facts: (i) Oxfam had pursued unlawful practices over a period of several years, and on a continuing basis, (ii) Oxfam's status as a charity was not an excuse for its behavior, given that the unlawful practices were motivated at least in part by the prospect of financial gain, (iii) Oxfam violated the fundamental rights of a very large number of individuals, and (iv) Oxfam did so in a way that was substantially distressing to those individuals. ICO also took into account the underlying objective of promoting compliance with the data protection laws. ICO stated that, given the seriousness, nature and extent of the violations, the penalty could have been significantly higher, had it not been the case that ICO took into account the circumstances of Oxfam's actions in the context of similar investigations into other charities.1
The International Fund for Animal Welfare ("IFAW") was among the charities that were similarly investigated by ICO. IFAW was fined for (i) using data-matching practices to obtain information (such as telephone numbers) that had not been provided by its supporters, by employing other personal data that the supporters had given, (ii) sharing 685,956 records in 2012 and 2013 with wealth-screening companies to rank its supporters based on their wealth, and (iii) sharing 4,948,633 records with around 60 other charities between 2011 and 2015 through a scheme run by an external company, enabling participating charities to share and swap the personal data of their supporters. ICO was satisfied that these practices constituted a serious violation, taking into account the same circumstances as it did in the Oxfam case. Consequently, ICO decided to impose a monetary penalty. Once again, ICO evaluated the mitigating and aggravating factors in determining the amount of the penalty.
The mitigating factors in this case were the same as in the Oxfam case. However, ICO emphasized that one of the aggravating factors in the IFAW case was the fact that the number of persons affected by the various breaches of the data protection laws was considerably higher, because some of the violations had occurred before ICO was authorized to impose a monetary penalty. It is apparent from the facts of the case that, since the contraventions were more serious and affected a larger number of people, ICO decided to impose a much higher penalty (triple the monetary penalty issued to Oxfam) on IFAW.
It seems to be the case that ICO imposes higher penalties for data protection breaches in cases concerning sensitive personal data. For example, in May 2016, ICO fined Blackpool Teaching Hospitals NHS Foundation Trust £185,000 for inadvertently publishing the private details of 6,574 members of staff, including their National Insurance numbers, dates of birth, religious
beliefs and sexual orientations. Also in May 2016, Chelsea and Westminster Hospital NHS Foundation Trust was fined £180,000 after it revealed the email addresses of 781 users of an HIV service. ICO stated that it took into account the fact that the recipients of the e-mail addresses could infer the HIV status of the owners of the e-mail addresses, as well as the fact that 730 of the 781 e-mail addresses contained the full names of the service users, whilst deciding the amount of the fine.
The Office for Personal Data Protection in the Czech Republic ("Czech DPA") held T-Mobile Czech Republic responsible for a breach, following the theft of customer data by an employee, for not implementing proper technical measures to prevent the employee from copying data. The Czech DPA imposed a CZK 3,600,000 (approx. EUR 133,000) fine, out of the maximum of CZK 10,000,000 (approx. EUR 370,000), taking into consideration the fact that over one million customers had been affected. The mitigating factors in this case were the following: (i) T-Mobile adopted preventative measures following the leak, and (ii) the leak was a direct consequence of the criminal offence of the employee involved.
In one of the most recent cases, the Italian Data Protection Authority ("Italian DPA") imposed the largest fine ever imposed by a European Data Protection Authority, amounting to more than EUR 11 million for five companies, which attributed money transfers to persons who had not provided consent. The Italian DPA took into account (i) the seriousness of the violations, (ii) the number of persons concerned, and (iii) the importance of the database involved, in the course of determining the amount of the sanction to be imposed.
The Italian DPA's record fine brought the level of fines closer to the ones set out under the EU's General Data Protection Regulation ("GDPR"), which will come into force in May 2018 and replace the Directive. Under GDPR, infringements of certain obligations may be subject to administrative fines up to EUR 20,000,000 or, in the case of an undertaking, up to 4% of the total worldwide annual turnover of the preceding financial year, whichever is higher.
The Bavarian Data Protection Authority ("Bavarian DPA") issued a guidance paper on various aspects of the GDPR, one of which was the amount of the administrative fines. The Bavarian DPA stated that the worldwide annual turnover of the whole group of companies will be taken into account, instead of the individual company's turnover, when determining the fine under the relevant GDPR provision (i.e., up to 4% of the total worldwide annual turnover of the preceding financial year).
In conclusion, examples in Europe provide insight into the possible considerations that the Turkish Personal Data Protection Board may take into account when deciding on the amount of the administrative fine to be imposed. It is also important to note that the European Union is in a period of transition to a new data protection regime, and that GDPR will be entering into force shortly, replacing the Directive. It is likely that the Personal Data Protection Board will be taking into account not only the Directive, but also the GDPR, when construing the provisions and implementing the Law.
This article was first published in Legal Insights Quarterly by ELIG, Attorneys-at-Law in June 2017. A link to the full Legal Insight Quarterly may be found here.
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