Selin OZBEK CITTONE
Attorney at Law / Managing Partner
05 August 2019
Turkey: Why is it important for your Global Compliance Program?
In the last two years, global companies were too busy getting compliant with the GDPR and all the other regions were mostly out of their radar. But before GDPR entered into effect, Turkish privacy legislation had a big change and Turkish Data Protection Law (“DPL”) was enacted on 7 April 2016 (along with the ratification of the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data). Further, this change an independent authority, namely, Turkish Data Protection Authority (“TDPA”), was formed to supervise and regulate the Turkish market. The Turkish DPL was based on EU Directive 95/46/EC. But it would be fair to say that, in many aspects, DPL leans more toward the GDPR. This seems to be the approach of the TDPA as well.
You may rightfully think that being globally compliant with GDPR may solve many of your problems. This is partially true when it comes to Turkish data protection laws.
First of all, consent under Turkish law is always explicit consent. It does not matter if you process normal data or sensitive data. And what the DPL calls sensitive data, is even broader than GDPR’s definition. DPL treats personal data revealing “race, ethnic origin, political opinions, philosophical beliefs, religion, sect or other beliefs, appearance and dress, membership of association, foundation or trade-union, health, sexual life, criminal conviction and security measures, and biometric and genetic data” as sensitive. Such categories of data can be processed without obtaining the explicit consent only if one of the following lawful grounds exists: (a) explicitly foreseen in the laws (except for data regarding health and sex life); and (b) personal data relating to health and sexual life can only be processed without obtaining the explicit consent of the data subject for purposes of protection of public health, operation of preventive medicine, medical diagnosis, treatment, and care services, planning and management of health services and financing by persons under the obligation of secrecy or authorized institutions and organizations.
These differences are very important when it comes to global compliance programs especially if your Turkish business
What do you need to do? And why do you need to hurry?
First, you must determine whether you may be, by any way, positioned as a foreign data controller for purposes of your Turkey related operations? In terms of the definition of “controller” and “processor” just use the test under the GDPR. If you would consider yourself a data controller for all or some of your global data processing activities related to Turkey, you must register with Data Controllers’ Registry latest by 30th of September 2019.
Although there is no specific provision in the DPL regarding the territorial scope of the DPL, the Regulation on Data Controllers’ Registry refers to foreign controllers and requires them to be registered with the Turkish Data Controllers’ Registry before commencing the processing of personal data in or from Turkey. This provision may be interpreted to give an extra-territorial reach to the DPL. Although still, we do not have any specific guidance of the TDPA in relation to extra-territoriality of the DPL, in different occasions the TDPA noted that they tend to interpret the processing by a foreign controller very widely. This suggests that the TDPA would not apply any tests, like in Article 3 (1) or (2) of the GDPR and require data controllers outside of Turkey to register if they process personal data related to Turkey.
Because the list of exemptions announced by the TDPA related to registration requirement does not, at least for now, include foreign data controllers, the monetary thresholds or professional exemptions for registry would not apply to controllers residing outside of Turkey.
What is needed to register?
Get ready & find your rep!
You should have prepared already your data inventory, data processing policy and your retention and neutralization policy. If you didn’t do so until to date, you should include these to the top of your to-do list now, as the deadline is 30th of September.
If you are not a Turkish company but doing business in Turkey and processing personal information you need to appoint a representative to liaise your relations with the DPA. Don’t forget, if you fail to register, you may be fined up to TRY 1,000,000. Apart from that, one must also always consider that the TDPA has the authority to suspended processing activities in case of noncompliance with the DPL.
When it comes to imposing fines, the UK’s ICO may have hit the Europe’s list this summer. But Turkish DPA has been very active too and imposed high fines to global organizations for data breaches involving Turkish data subjects.