Data Protection Board (“DPB”) has recently announced its decision no. 2019/10 and dated 24/01/2019 on the management of data security breaches and notifications to the DPB and data subjects. The DPB also announced its decision no. 2019/9 and dated 24/01/2019 on the calculation of the time periods for applications to data controllers and complaints to the DPB in order to “harmonize the difference in the interpretation of the periods.”
Data Controllers’ Obligations on Data Security
In accordance with article 12 of the PDPL, data controllers are obliged to implement all necessary technical and organizational measures for providing an appropriate level of security in order to (i) prevent unlawful processing of personal data, (ii) prevent unlawful access to personal data, and (iii) safeguard personal data.
Management and Notification of Data Security Breaches
We provide below a summary of the DPB’s decision no. 2019/10 on data security breaches.
Preparation of Data Breach Response Plan and Record Keeping
- Data controllers must prepare a “Data Breach Response Plan” and this plan must address matters including, among others, (i) to whom a data breach shall be reported within the controller’s organisation and (ii) who shall be responsible for the assessment of the potential consequences of the breach and for the notifications to be made.
- Data controllers must keep records of the following and have the same available for DPB’s review: (i) information regarding the data security breach, (ii) impacts of the breach, and (iii) measures implemented in relation to the same.
Breach Notification Periods
- Notification to the DPB: Data controllers must notify the DPB from the moment the data controller becomes aware of the data breach without any delay and within 72 hours at the latest. In the event that the data controller was not able to notify the DPB within 72 hours, it must also explain the causes of the delay in its notification to the DPB. The 72 hours notification period designated for data security breaches is compatible with the period specified in the European Union’s General Data Protection Regulation.
- Notification to Data Subjects: Following the identification of data subjects affected by the breach, data controllers must notify the data subjects “as soon as reasonably possible.”
Breach Notification Procedures
- Notification to the DPB: Data security breaches must be notified to the DPB via the “Personal Data Breach Notification Form” published on the DPB’s website. In the event that it is not possible to provide the information within this form all at once, such information must be provided gradually without causing any delay.
- Notification to Data Subjects: The data subjects must be directly notified if their contact information is available to the controller. Otherwise, the notification must be affected via other “appropriate means” such as publishing an announcement on the controller’s own website.
Data Controllers Residing Abroad and Data Processors
- In the event that the breach occurs within the organisation of a data processor, such data processor must notify the data controller of the breach ”without any delay”.
- In the event that the breach occurs within the organisation of a data controller residing abroad, the notification to the DPB is mandatory if the data breach meets the following conditions: (i) the consequences of the breach affect data subjects residing in Turkey and (ii) data subjects benefit from the products and services in Turkey.
Periods for Applications to Data Controllers and Complaints to the DPB
In its decision no. 2019/9 and dated 24/01/2019, the DPB has emphasized the following points on the calculation of the time periods for applications to the data controllers and complaints to the DPB:
- In the event that the application of the data subject is replied by the data controller within 30 days, the data subject can file a complaint to the DPB within 30 days following the reply of the data controller. In this respect, the time period in which the data subject needs to file her/his complaint with the DPB is not a 60 days’ period starting from the application to the data controller.
- In the event that the application of the data subject is not replied at all by the data controller, the data subject can file a complaint with the DPB within 60 days starting from the data subject’s date of application to the data controller. We note that the data subject may only file her/his complaint in the second half of such 60 days’ period as the data controller will have 30 days to respond to the application.
- In the event that the application of the data subject is replied by the data controller after the 30 days’ period, the data subject can file a complaint with the DPB after the expiration of the data controller’s reply period of 30 days and he/she is not obliged to wait for any reply from the controller beyond the initial 30 days’ period. In this case, the complaint period will not be 30 days starting from the data controller’s date of response but within 60 days starting from the data subject’s date of application to the data controller. Again, we note that the data subject may only file her/his complaint in the second half of such 60 days’ period as the data controller will have 30 days to respond to the application.
Although these points emphasized by the DPB are also evident from the wording of the relevant provisions of the PDPL, we presume that the DPB published this decision due to the complaints it has received where the time periods were confused by the data subjects and/or data controllers.
In order to illustrate the matter, we provide below a visual in relation to the time periods for applications to the data controllers and complaints with the DPB: