Arzu Aksac and Fırat Akşener of Aksac Law Office provide an overview of the latest developments in Turkey’s data protection laws
Concerns regarding rights of privacy had begun to spread around the world as early as the 1960s and prompted the enactment of data protection laws in the 1970s in continental Europe and the US. Turkey followed this trend a decade later on September 23 1980, when it adhered to the OECD Guidelines on the Protection of Privacy and Transborder Flows of Personal Data. This was coupled with Turkey's signing of the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (Convention) on January 28 1981. Nevertheless, the Convention was not enacted into Turkish Law until 2016 due to a lack of political will to transpose the principles enshrined in the Convention into Turkish Law, which was a pre-requisite stipulated in article 4 of the Convention.
Even though the First Draft Law on Data Protection came to light in 2008, it could not be brought before the Turkish parliament (Parliament) until 2014 since it underwent a series of amendments and was stalled in parliamentary commissions. Thus, the Second Draft Law on Data Protection (Second Draft Law) was referred to the Parliament only on December 26 2014, before receiving the approval of the majority on March 24 2016 and being submitted to the President of the Republic of Turkey for his assent on March 30 2016. Save for its certain specified provisions, it has become effective as of April 7 2016 upon being published in the Official Gazette of the same date.
In the period between the signing of the Convention and its enactment, data protection rules were stipulated in scattered pieces of legislation such as the Turkish Constitution of 1982, the Turkish Civil Code of 2001 and the Turkish Criminal Code of 2001.
Even though these general and special laws will remain in force with the enactment of the Turkish Data Protection Law, they may be amended so as to be applied in compliance with it.
The Convention was ratified by Parliament and enacted into Turkish Law with the publication of Law 6669 in the Official Gazette on February 18 2016, after having been kept on the shelf for almost 35 years.
Article 3 (second paragraph) of the Convention provides certain entitlements: any member state can give, at the time of signature or when depositing its instrument of ratification, acceptance, approval or accession, or at any later time, notice to the secretary general of the Council of Europe that, among other things, it will not apply this Convention to certain categories of automated personal data files, a list of which will be deposited, and that it will also apply this Convention to personal data files that are not processed automatically.
On the basis of the authority conferred by article 3 (second paragraph) of the Convention, Turkey declared that it would not apply the Convention to the following personal data:
Similarly, Turkey has also declared that the Convention will apply to personal data which is not processed automatically.
Data Protection Law 6698
As explained above, Turkish Data Protection Law 6698 (DPL) was enacted by Parliament on March 24 2016 and, apart from its provisions which will become applicable six months after April 07 2016,has become applicable concurrently with its publication in the Official Gazette on April 07 2016
Apart from being a reflection of the Convention, the enactment of the DPL also forms part of Turkey's efforts for harmonising its laws with those of the EU. For this purpose, the DPL is modelled on Directive 95/46/EC of the European Parliament and of the Council of October 24 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (Directive). Although the DPL will introduce important changes for the processing of personal data under local law, it is destined to fall behind the standards met by EU member states soon upon the forthcoming adaptation of (i) the General Data Protection Regulation (Regulation) and, (ii) the Directive of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data by competent authorities for the purposes of prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and the free movement of such data (New Directive). The incompatibility which will occur between the forthcoming EU legislation and the DPL when the prospective Regulation and the New Directive are put into effect can be removed by way of amendments to the DPL. However, this would trigger a new enactment process, which is likely to be time consuming; yet we do not expect this process to be as excessively long as it was with the enactment of the DPL.
In parallel to the Directive, the DPL aims at protecting the fundamental rights, in particular, the right to privacy, and sets out the obligations, procedures and principles that individual persons and legal entities processing personal data must abide by. The DPL is applicable to individual persons whose personal data has been processed and individual persons or legal entities that process personal data through automatic, partially automatic, or non-automated means, by way of forming part of a personal data filing system.
Exceptional circumstances under which the DPL will not be applicable are prescribed in article 28 of the DPL as: i) the processing of personal data by individual persons in relation to their private issues and the issues relating to those who live in the same household, provided that such personal data is not transferred to third parties and data protection obligations are observed; ii) the use of personal data for planning, statistical, research or similar purposes after being anonymised; iii) the use of personal data within the context of art, history, literature, or for scientific purposes, provided that the use of that personal data does not pose any threat to national defence, national, public or economic security, public order or violate personal rights or privacy or constitute a criminal offence; iv) the use of personal data by lawfully established and authorised government institutions in their preventative, protective or intelligence practices aimed at protecting national defence, national, public or economic security or public order; and, v) the use of personal data by judicial authorities within the context of judicial investigations, prosecution, adjudication and enforcement. In addition to these, as regards the disclosure requirement that applies to controllers, data subjects' rights under article 11, excluding the right to claim compensation, and the provisions regarding controllers' obligation to register in the controllers' register will not be applied under certain circumstances. Those circumstances include, among other things, for the purposes of protecting the financial and economic interests of the state or, where the personal data concerned was already made public by the data subject.
The duties and structure of the Turkish Data Protection Institution (Institution), which will act as the supervisory authority as described both in the Directive and the Convention, are regulated under articles 20 to 27 of the DPL, according to which the Institution will be affiliated with the prime ministry. This will no doubt pose a threat to the Institution's independent nature by exposing it to the risk of political influence and appears to be the most important downside of the DPL. Moreover, the board, which is the decision making body of the Institution, consists of nine members, five of which are designated by Parliament, two by the president and the remaining two by the council of ministers. In contrast with this, article 20 of the DPL regulates that the board must act independently and not be influenced by any individual person or legal entity, regardless of the title or position it may hold. The duties of the Institution include: observing developments in legislation, making evaluations and doing research, cooperating with government offices, civil society organisations, universities and trade organisations; where necessary, observing international developments regarding data protection, and submitting an annual activity report to the presidency, and the human rights observation committee of the assembly and the prime ministry.
The board is entrusted with the duties of ensuring that personal data is processed in compliance with fundamental rights and freedom, evaluating the complaints of data subjects, taking temporary measures regarding the processing of personal data, imposing administrative fines, setting out the rules relating to data protection and the duties of the controllers.
Article 3 of the DPL echoes article 2 of the Directive and defines personal data as: 'any information relating to an identified or identifiable natural person'. Since the DPL remains silent on the criteria for identifiability, we believe that the definition in article 2 of the Convention should be taken as the basis.
The terms 'processing of personal data', 'data subject', 'personal data filing system', 'processor' and 'controller' all have similar meanings as used in the Directive.
Article 4 of the DPL, which reflects the provisions of article 6 of the Directive, regulates that personal data can only be processed if: i) it is done lawfully and in compliance with the principles of good faith; ii) the personal data subject to processing is accurate and up-to-date; iii) the personal data is processed for specific, explicit and legitimate purposes iv) it is stored only for a period necessary for the purpose for which it is processed.; v) the processing is limited in scope and proportionate.
The processing of personal data is permitted according to article 5 of the DPL so long as at least one of the following conditions is met: i) it is permitted by law, ii) it is required to protect the life or physical integrity of a data subject or of another person in the case where the data subject is physically or legally incapable of giving his/her consent, iii) the personal data was made available to the public by the person it relates to, iv) it is required to grant, exercise or protect a legal right, v) it is required for the controller to perform its duties, provided that the fundamental rights and freedom of the data subject are not violated, and, vi) when it is necessary to process personal data relating to parties of a contract, provided that the processing relates to the making or performing of a contract. The provisions under article 5 of the DPL are compatible with the corresponding article 7 of the Directive, even though subsection (f) of the Directive, which allows processing when it "...is necessary for the purposes of the legitimate interests pursued by the controller or by the third party or parties to whom the data are disclosed, except where such interests are overridden by the interests of fundamental rights and freedom of the data subject which require protection under article 1 (1)" provides wider protection for individuals.
The processing of special categories of personal data, namely personal data concerning race or ethnic origin, political opinions, religious, philosophical or other beliefs, outfit, trade-union membership, health or sexual life, biometric or genetic information, convictions or security measures taken in respect of a person, is forbidden under the DPL, save for certain specified circumstances. Special categories of personal data, other than those relating to a person's health or sexual life can be processed without the express consent of the data subject, provided that it is prescribed by law. Under article 6 (third paragraph) of the DPL, personal data concerning the health or sexual life of a person can only be processed for the protection of public health and/or other health-related issues.
Personal data processed in accordance with the DPL, must be erased, destroyed or anonymised ex officio by the controller or upon the application of the data subject, once the purposes for which the personal data was processed have been met or become no longer relevant. The procedure relating to this process will be regulated by a communiqué yet to be issued.
The transfer of personal data is prohibited under article 8 of the DPL, unless express consent is given by the data subject. However, in the case of the exceptions set out under article 5 and article 6 (third paragraph) of the DPL, personal data can be transferred without the data subject's consent.
The transfer of personal data abroad is also subject to the express consent of the data subject. Nevertheless, in cases of the exceptions set out under article 5 and article 6 (third paragraph) of the DPL, subject to the recipient country providing adequate protection and the Institution's approval, personal data can be transferred abroad without the data subject's express consent. In cases where the recipient country does not provide adequate protection, personal data can only be transferred without the data subject's consent by way of obtaining a written statement from the controller of the recipient country, in which it undertakes to protect the transferred personal data and with the authorisation of the Institution. Whether a foreign country provides adequate protection for personal data will be determined by a list to be published by the Institution. Article 9 (fifth paragraph ) of the DPL contains a vague provision, which provides that, without prejudice to the provisions under the treaties to which Turkey is a party, personal data may only be transferred abroad with the express consent of the relevant institution and the Institution, if such a transfer would be detrimental to the interests of Turkey or the data subject.
Under the disclosure requirement, controllers, while processing personal data, are obligated to inform the data subject about: the identity of the controller and of its representatives; the purposes of the processing; the transferees of the personal data and the reasons for the contemplated transfer; the methods and the legal basis of the collection of the personal data and data subjects' rights under article 11 of the DPL, which include the right to obtain information from the controller about the issues explained above, file complaints regarding any non-favourable outcome of the analysis of his/her processed personal data exclusively by any automated means, request that personal data be corrected, if not accurate, or erased, destroyed, and claim damages. Under article 16 of the DPL, controllers must register in the controllers register, which will operate under the Institution's supervision.Controllers will also be obliged to ensure that personal data is not processed or accessed illegally and that all necessary supervision and controls are carried out to provide the due application of the DPL. In cases where personal data is processed by third parties in the controller's name, the controller will be jointly liable together with these third parties, and is obliged to promptly inform the Institution of any illegal processing of personal data. The Institution may announce, via the internet or other means it deems appropriate, the illegal processing of personal data, where necessary.
A two-tier complaint mechanism is designed under article 13 of the DPL, by means of which data subjects can seek protection for their privacy. A data subject is vested with the right to refer his/her complaints to the controller, in writing or through alternative methods to be determined by the Institution. The controller will then have a maximum thirty days to assess the application and make a decision. Should the controller dismiss a complaint so filed, the complainant can appeal to the Institution within thirty days of receiving the controller's dismissal and, in any case, within sixty days of the submission of his complaint to the controller. The Institution will have sixty days to process an application and will require the controller to remedy the breach of law if it decides in favour of the applicant. The Institution also has the authority to make resolutions of general application and make them public if it determines that the breach subject of a data subject's complaint is widespread. Data subjects whose personal rights have been infringed can also seek compensation through general provisions of Turkish law.
The DPL stipulates several penalties for the breach of its provisions, which may vary from imprisonment to administrative fines depending on the severity of the breach.
Article 30 of the DPL makes amendments to various laws, such as the Turkish Criminal Code and the Health Services Fundamental Law, to reflect the provisions of the DPL.
A transition period is envisaged under provisional article 1 of the DPL, which will start running upon effectiveness of the DPL. The Institution will be established within six months of the DPL's effectiveness. Similarly, all personal data which was gathered before the effectiveness of the DPL will have to be stored in compliance with the DPL, and personal data that was gathered in violation of the provisions of DPL will be destroyed. All government institutions will appoint a director within one year of the DPL's coming into force, who will be responsible for coordination with the Institution. Finally, all communiqués relating to the DPL will have to be published by the Institution within one year of the announcement of the DPL in the Official Gazette.
Articles 8 (transfer of personal data), 9 (transfer of personal data abroad), 11 (rights of data subjects), 13 (application to the controller), 14 (appeal to the board), 15 (procedure relating to ex officio investigations and investigations based on complaints), 16 (controllers' register), 17 (offences) and 18 (misdemeanours) of the DPL will become effective six months after the publication of the DPL in the Official Gazette. The remaining provisions will become applicable concurrently with the publication.
First published by our sister publication IFLR magazine. Take your free trial today.
Aksac Law Office
About the author
Founding partner, Arzu Aksac, with her 25-years of professional experience is an internationally recognised lawyer. She founded the firm in September 2010 after having worked for nine years as partner at an Istanbul-based Turkish law firm with an international practice. She worked as overseas legal counsel in the banking department at Allen & Overy, London (1998 to 2001). She has wide experience in major projects and complex financial work, M&As, and corporate and commercial work. She also has substantial experience in oil, gas and power, as well as mining law. She holds an LLB from Dokuz Eylul University, Faculty of Law, İzmir (1990) and an LLM in US legal studies from the University of Connecticut, School of Law (1995). She is fluent in English and German.
Aksac Law Office
About the author
Fırat Akşener, associate attorney at Aksac Law Office, is a Turkish qualified lawyer registered at the Istanbul Bar Association since 2012. He spent summer 2013 at London-based law firms shadowing and building a professional network, and completed the Graduate Diploma in Law post-graduate programme at the University of the West of England in 2015. He is an LLM student at Yeditepe University of Turkey and has experience in the fields of banking law, company law and corporate governance, contract law, energy law, intellectual property law, competition law, healthcare law and regulatory matters. Fırat is fluent in English.