Intellectual Property, Information Technology & Cybersecurity

Contact: Eda Uludere; Erdem & Erdem (Turkey)

Introduction and General Legislative Framework

Protection of personal data has become increasingly important in the second half of the 20thcentury onwards, and more strikingly so in the last decade. In European context, such protection is realized through a twofold system; namely, the Council of Europe (“CoE”) protection of personal data scheme, and the protection enshrined in the European Union’s (“EU”) acquis communautaire. The CoE’s system is comprised of Art. 8 of the European Convention on Human Rights (“ECHR”) on one hand, and the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (“Convention No. 108”) on the other. Although all 47 of the CoE Member States, including Turkey, are parties to the ECHR, Turkey is not a State Party to Convention No. 108 as of the date of this article, although Turkey signed it on 28.01.1981. As for the EU framework, adopted in 1985, Directive 95/46/EC (“Directive”) is the primary piece of legislation that governs the protection of personal data[1]. However, a new regulation referred to as the General Data Protection Regulation (“GDPR”) is on its way to include the impacts of technological innovations such as social media and cloud computing[2].

Personal data protection in the Turkish system finds its roots in the last paragraph of Art. 20 of the Constitution, which was added to the provision on 12.09.2010. This paragraph reads: “Everyone has the right to request the protection of his/her personal data. This right includes being informed of, having access to and requesting the correction and deletion of his/her personal data, and to be informed whether these are used in consistency with envisaged objectives. Personal data can be processed only in cases envisaged by law or by the person’s explicit consent. The principles and procedures regarding the protection of personal data shall be laid down in law.” The law foreseen by the law-maker in the last sentence has been on the Turkish legislative agenda for many years. Aligned very closely with the Directive, the fourth version of the Draft Law on the Protection of Personal Data (“Draft Law”) was issued in 2014, and is expected to become law in 2016[3].

The protection regarding electronic commercial communication is enshrined in the Law on the Regulation of Electronic Commerce numbered 6563 (“E-Commerce Law”), published in the Official Gazette dated 05.11.2014 and numbered 29166 and entered into force on 01.05.2015. This article addresses the personal data protection that falls outside the scope of the E-Commerce Law and, where applicable and necessary, adopt a comparative approach with the corresponding EU legislation[4].

The Definition

The definition of personal data is provided in Art. 2(a) of the Directive as “… any information relating to an identified or identifiable natural person (‘data subject’); an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his physical, physiological, mental, economic, cultural or social identity.” As is observed, the term is widely defined, ensuring a wider scope for protection.

Art. 3 of the Draft Law defines personal data almost identically, and the justification of this provision clarifies this definition by listing, inter alia, the name, surname, date and place of birth, information regarding a person’s physical appearance, his/her familial, economic, social and psychological properties, his/her social security number, curriculum vitae, his/her image and sound recordings, and his/her genetic data, IP address, e-mail address, hobbies, preferences, and memberships. The medical data and religious and political beliefs of a person can also be listed among those above-mentioned.

The Directive introduces a sub-category of personal data under Art. 8 which is adapted into the Draft Law as Art. 6. Accordingly, ethnicity, origin, political, religious and philosophic views, union memberships, information on health and sexual life are deemed as special categories of personal data. The distinction is fortified by the fact that such data are prohibited from being processed in both the Directive and the Draft Law. Exceptions to this rule are indicated in their respective provisions. Convention No. 108 also lists data pertaining to criminal convictions as personal[5].

The Scope of Protection

Although Turkey has yet to enact a law on the protection of personal data as foreseen by its Constitution, with the exception of E-Commerce Law, the current protection relies on the Turkish Constitution, Turkish Civil Code numbered 4721 and Turkish Criminal Code numbered 5237. Art. 23 et seq. of the Turkish Civil Code regulates the protection of the personal rights and the lawsuits to be filed to this end. Moreover, Turkish Criminal Code Art. 135 criminalizes the unlawful recording of any personal data, Art. 136 the illicit sharing or obtainment of such data, and Art. 138, the failure to dispose of such data.

The protective measures included in the Draft Law and the Directive are very similar. Firstly, Draft Law Art. 4 sets forth some General Principles with regard to personal data processing, among which are lawfulness and compliance with the principle of good faith; correctness and actuality; being specific, explicit and legitimate in purpose, and connectedness with the purpose for which the data is being processed, being limited and proportional while doing so; and finally, retaining the data no longer than necessary. In comparison, Art. 5 of the Directive stipulates very similar principles for data protection, except that such principles are explained somewhat more in detail.

In accordance with Art. 6 of the Draft Law, the special kind of personal data, in other words, sensitive data, shall only be processed under exceptional circumstances. In this vein, Art. 7 of the Draft Law presupposes that although processed lawfully, provided that the reasons which led to the processing of any given data has disappeared, such data shall be erased, destroyed or made to be anonymous, either ex officio, or upon the data subject’s request. Furthermore, Art. 8 introduces limitations as to the transfer of personal data, and makes it conditional to the fulfillment of certain criteria also set forth by the same provision. Art. 10 fills an important gap in the personal data protection scheme by regulating the rights of the data subject, including the right to request information on whether his/her personal data exists, has been subject to processing, transferred, or correction requested of any personal data, etc. In addition, the same article also bestows the right to claim damages arising from the unlawful processing of personal data.

Part VI of the Draft Law provides for the establishment of a Personal Data Protection Board (“Board”) that will oversee the implementation of the Draft Law. Moreover, a registry of data responsibilities shall be established under Art. 15 of the Draft Law, to which the parties who are responsible for processing any personal data shall be registered. The personal data protection is supervised by the European Data Protection Supervisor (“EDPS”), which is an independent supervisory authority at the EU level[6].

Art. 16 of the Draft Law makes reference to the provisions of the Turkish Criminal Code; whereas, Art. 17 sets forth certain misdemeanors and monetary sanctions pertaining thereto. Art. 24 of the Directive provides for Member States to lay down the sanctions to be imposed in the event of an infringement of the Directive.

Conclusion

Personal data protection is at the verge of being enhanced in both Turkish and EU systems. Although the EU provides greater protection via adapting its current legislation to another legal instrument (namely, a regulation) and introducing provisions to ensure personal data protection in recent forms of communication and data storage, Turkey is historically far from catching up to EU standards, as the Draft Law has not yet been enacted. When enacted, influenced very closely by the Directive, the Turkish personal data protection system will very much resemble its EU counterpart.