Our readers will recall that ErsoyBilgehan has contributed to the Turkey chapter of International Comparative Legal Guides (“ICLG”) to Data Protection prepared by the Global Legal Group. The ICLG series provides current and practical comparative legal information on a range of practice areas and it follows a question and answer format which ensures thorough coverage of each topic within different legal systems worldwide.
The ICLG to Data Protection 2016 - Turkey Chapter provides a practical insight for general counsel, government agencies, private practice lawyers, and corporations, keeping them abreast of law and policy developments in 2016.
1. Relevant Legislation and Competent Authorities
1.1. What is the principal data protection legislation?
The principal data protection legislation is the Law on the Protection of Personal Data no. 6698 (the “Data Protection Law”), which was inspired by the European Union Data Protection Directive 95/46/EC (the “EU Directive”).
The Data Protection Law entered into force on 7 April 2016; however, its provisions relating to the transfer of data, rights of the data subject, data controllers registry, administrative fines, and criminal sanctions will enter into force six months following its effective date.
1.1. Is there any other general legislation that impacts data protection?
The general provisions that are applicable in terms of data protection are primarily the following:
- The Constitution of the Republic of Turkey: Right to privacy and data protection as per Article 20 and freedom of communication as per Article 22.
- Turkish Civil Code: Protection of personality against violations as per Article 24.
- Turkish Criminal Code: Unlawful recording, acquisition or dissemination of personal data as per Articles 135–138; unlawful surveillance of the transmission of data between information systems as per Article 243; and unlawful deletion or altering of data as per Article 244.
1.2. Is there any sector specific legislation that impacts data protection?
The sector-specific laws and regulations that are relevant in terms of data protection are primarily the following:
- the Law on the Regulation of Broadcasts via Internet and Combating Crimes Committed by Means of Such Publications;
- the Electronic Communication Law and its secondary legislation;
- the Law on the Regulation of Electronic Commerce (“E-Commerce Law”) and its secondary legislation;
- the Bank Cards and Credit Cards Law and its secondary legislation;
- the Regulation on Patient Rights; and
- the Regulation on Distance Contracts.
1.3. What is the relevant data protection regulatory authority(ies)?
The Data Protection Law stipulates the establishment of a Data Protection Authority whose decision-making body shall be the Data Protection Board (the “Data Protection Board”) which shall be constituted within the six months following the Data Protection Law’s effective date.
2.1. Please provide the key definitions used in the relevant legislation:
Personal data is defined as “any information relating to an identified or identifiable natural person”.
“Sensitive Personal Data”
The Data Protection Law refers to this type of information as “special categories of personal data” which is defined as “data relating to race, ethnic origin, political opinions, philosophical beliefs, religion, sect or other beliefs, appearance and dressing, membership of association, foundation or trade-union, health, sexual life, criminal conviction and security measures, and biometrics and genetics”.
Processing is defined as “any operation which is performed upon personal data such as collection, recording, storage, preservation, alteration, adaptation, disclosure, transfer, retrieval, making available for collection, categorisation or blocking its use by wholly or partly automatic means or otherwise than by automatic means which form part of a filing system”.
Data controller is defined as “any natural or legal person who determines the purposes and means of the processing of personal data, and who is responsible for the establishment and management of the filing system”.
Data processor is defined as “any natural or legal person who processes personal data based on the authority granted by and on behalf of the data controller”.
Data subject is defined as “any natural person whose personal data are processed”.
Other key definitions
- Anonymisation is defined as “rendering personal data by no means identified or identifiable with a natural person, even by linking with other data”.
- Explicit consent is defined as “freely given specific and informed consent”.
- Filing system is “any recording system through which personal data are processed by structuring the same according to specific criteria”.
3. Key Principles
3.1. What are the key principles that apply to the processing of personal data?
The Data Protection Law provides for certain obligations to ensure transparency when data are processed. Accordingly, while collecting personal data, the data controller is obligated to inform the data subject of the following information:
- the identity of the data controller, or, if available, its representative;
- the purposes for which personal data will be processed;
- the persons to whom personal data might be transferred and the purposes for such transfer;
- the method and legal cause of collection of personal data; and
- the rights of the data subject.
The data controllers are also required to register with a publicly available Data Controllers Registry before they start processing personal data.
Lawful basis for processing
The Data Protection Law adopts a rule and exception model, where it provides a general rule for processing, and then sets forth exceptions thereto. Accordingly, the primary principle is that personal data shall only be processed with the explicit consent of the data subject. Nevertheless, personal data may also be processed without obtaining the explicit consent of the data subject if one of the following conditions exists:
- processing is expressly permitted by any law;
- processing is necessary in order to protect the life or physical integrity of the data subject or another person where the data subject is physically or legally incapable of giving consent;
- it is necessary to process the personal data of parties of a contract, provided that the processing is directly related to the execution or performance of the contract;
- processing is necessary for compliance with a legal obligation which the controller is subject to;
- the relevant information is revealed to the public by the data subject herself/himself;
- processing is necessary for the institution, usage, or protection of a right; and
- processing is necessary for the legitimate interests of the data controller, provided that the fundamental rights and freedoms of the data subject are not harmed.
In terms of sensitive personal data, although the explicit consent rule is applicable to the processing of sensitive personal data, exceptions are rather limited in this case:
- Sensitive data, except for data concerning health and sexual life, can be processed if it is permitted by any law;
- Data concerning health or sexual life can only be processed for the purposes of protection of public health, and planning or sustaining health-care services by an authorised body or persons who are under the obligation of confidentiality.
Additionally, data controllers are required to take adequate measures designated by the Data Protection Board when processing sensitive personal data.
Finally, the Data Protection Law stipulates general principles (“General Principles”) to be complied with when data are processed. These principles require that personal data should be:
- in conformity with the law and good faith;
- accurate and, if necessary, up to date;
- processed for specified, explicit, and legitimate purposes; and
- relevant, limited and proportionate to the purposes for which data are processed;
- stored only for the time designated by relevant legislation or necessitated by the purpose for which data are collected.
The General Principles indicated above covers purpose limitation as well.
The General Principles indicated above covers data minimisation as well.
The General Principles indicated above covers proportionality as well.
As the General Principles require, personal data must be stored only for the time designated by relevant legislation or necessitated by the purpose for which data are collected. Further, the Data Protection Law requires that personal data shall be deleted ex officio or upon data subject’s request in case the reasons necessitating their processing ceases to exist.
Other key principles – please specify
Data Accuracy: As per the General Principles, personal data must be accurate and if necessary, up to date.
Previously published by Global Legal Group