Articles
Turkey: A General Overview on Data Protection and Privacy Law in Turkey
01/07/2009
This review will assess the scope of Data Protection and Privacy only in reference to personal data.
Data accurate data that is, one of the most valuable assets for the world today. When we look the etymology of the word in Wikipedia, it is described as “ [data is] the plural of Latin datum, neuter past participle of dare, "to give", hence "something given". So in the context of personal data, this infers that we are giving away information which is of importance and value to the receiver. In every age, in every industry and in every sector, data has always mattered and still does. In the commercial-driven world we operate in today, it is evident to see the role that data plays in the global market from marketing giants with multimillion campaigns to small enterprises and even government bodies, accurate and purposive data is the backbone of their marketing and sales strategies. As human nature, we are more willing to give what is demanded of us without properly considering the consequences this may have in the future. Your name, your address and your phone number, all seem to be simple or irrelevant personal details. However today, where we have already surpassed the space age and are currently living in a “cyber age” where our personal data is shared, exchanged and stored electronically. Most services, enterprises and any form of information needed from us is likely to be held electronically or in database systems and this compels us to be more willing to provide such personal information such as our mobile phone numbers, e-mail addresses without contemplating the possible repercussions this may have.
Nowadays, information can exist in many forms. It can be printed or written on paper, stored electronically, transmitted by post or via electronic means, shared in media, or exchanged verbally. Whatever forms the information takes, or means by which it is shared or stored, it should always be appropriately protected.
So, without any doubt, there is a need for the protection of data, but how can this be achieved? Is it really that difficult? As information can exist in many forms, there are just as many, if not more ways it can stolen or misused. Essentially, the obligation to protect data should be the government's responsibility through issuance of various and effective legislations and this must surely start at the core; in the Constitution.
So, let's focus on and have closer look at Turkish law in terms of its data privacy and protection Law/Legislation. Within the national legal framework, Article 20 of the Turkish Constitution regulating the Confidentiality and Protection of Private Life states that; “ every person has the right to confidentiality and personal privacy and these rights are untouchable”. This regulation also constitutes that; “ every person has absolute freedom to decide whether to provide or not his/her personal data and in the latter, he/she shall not be compelled to do so”.Restriction and limitation of these rights are possible in exceptional circumstances by governmental authorities, police, courts and by some other legal entities. However, such particular restrictions must be legitimized with a court's decision or with a state of emergency or restriction conditions must be defined explicitly in a regulation.
The second legislation related with the issue is, the Turkish Civil Code. According to the Article 24 of the Turkish Civil Code, which regulates the Protection of Civil Rights; “ the person whose personal rights are violated can instantly claim protection from the legal enforces and the courts”.
In addition, the Electronic Signature Act of 2004 can also be perceived as a big step forward for the Turkish Government in terms of data protection and privacy which mainly regulates; (i) that e-signatures have the same value and effect as actual written signatures and thus validate proceedings concluded in the electronic environment; and (ii) the implementation of several regulations by public authorities.
With regards to the data privacy and protection in Electronic Act, Article 12 regulates data collection and data processing and Article 16 underlines the importance of express consent from the provider and penalizes contrary receipt of data.
The “Telecommunication Council” is commissioned to be the main responsible institution for Data Protection and Privacy by the Turkish Government. Under the supervision of the Council, there are also some regulations in terms of Data Protection in the Telecommunication sector such as; “Regulation on Personal Data Processing and Protection at Telecommunication Sector”. In Article 20 of the related regulation, it is clearly stated that “ you shall not obtain any personal data without the express consent of the person; and process/use it in terms of communicating by telephone, fax, mobile phone and electronic mailing or any other electronic communication device”. And the subject should always have easy access to an “opt-in/opt-out” option whenever he/she wants.
Despite the above, it can be reduced that, there is actually no specific regulation concerning the data protection and privacy in Turkish law. There's even no concrete definition for “personal data”. However, “Regulation on Personal Data Processing and Protection at Telecommunication Sector” is the only regulation that makes a frame definition for “Personal Data” in article 3 as; “ any kind of ID information such as ID number, any other direct and/or indirect physical, sociological, cultural, economical, ethnical, political information and also other additional explanatory information regarding her/his genetic, religious and family status”.
So, In the light of this very general and vague definition; the name, postal address, e-mail account info, phone numbers, age, sex, is generally accepted as personal information in practice. According to the above mentioned regulation, digital information such as; computer IP addresses, might also be considered as any other indirect or direct information in an event of damage and loss. But it will definitely be plodding and under the discretion of the relevant courts.
Hence, the government is working on a draft law and shall soon promulgate a specific code in accordance with Agreement 108 of EU “Convention for Protection of Inpiduals with Regard to Automatic Data Processing” which Turkey is a signatory to. But as mentioned, it is still in the pipeline and is not yet adopted.
Nevertheless, the Turkish Penal Code, Turkish Civil Law and other specific laws such as Banking Law, Capital Markets Law may be applied to the said issues as appropriate. Other than these regulations which can be applied, we hereby also want to state the relevant laws in terms of civil and penal liabilities.
Before proceeding, some points also need to be clarified with respect to overseas personal data transferring. Obtaining, processing, disclosing and transferring personal information with out the prior consent of the person, both in a national and in an international context will be subject to liability. Prior written consent of the person is prerequisite for the transfer of the data and with the explicit prior consent of the related person, the personal data can be transferred to third countries, unless otherwise, this information does not constitute a national security and general moral issue.
This written consent should consist the opt-in (e.g. by ticking box, signing, etc. you give your consent to your personal data being transferred to country X) and opt-out (e.g. if you do not wish your data to be transferred to country X, please tick box) for withdrawing their consent.
Although there are no particular restrictions on international transfers of personal data, this written consent will be even more crucial and imperative in internationally processing and transferring “sensitive” data such as; racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership, health, or sex life.
Moreover, there are more solid definitions in the slippery grounds like banking and finance sector. Pursuant to “Debit and Credit Cards Law”, prior written consent of the cardholder is vital and personal information such as name, address, phone numbers, e-mails and any other relevant financial information should not be disclosed, sold, exchanged or transferred to third parties without these written and undersigned consent. Both banks and member workplaces are liable for to take the required precautions in order to prevent the cardholder from any harm.
Despite the Data Protection and Privacy draft law in the pipeline and the outline regulations stated afore, this area of law is still immature and crawling in Turkey. In order to be on the safest side, it's sturdily suggested that; all the general provisions starting from the Constitution to the specific industrial directives should be examined rigorously and no step should be taken without taking professional legal assistance from an expert.
The consequences of non-compliance with the rules applicable to both national and international transfers of personal data will be severe, as it's briefly explained in the following paragraphs.
Civil Liability
Disclosing, transferring or misuse of personal and/or confidential data in any way is deemed an invasion to personal privacy and consequently an infringement on personal rights. Any unlawful invasion to the person's privacy including personal and/or confidential information will incur legal consequences. The scope of personal or confidential data is determined by a judge of the courts under his sole discretion unless such scope is defined within the terms of a confidentiality agreement or any other agreement between the parties or is specified by a special Code. An aggrieved party may file the lawsuits as defined under Turkish Law. Secondly, an aggrieved party may receive indemnification of their material and immaterial damages pursuant to Article.49 of the Code of Obligations.
Prior to Article 24/II of Civil Code there were three legal grounds in which invasion of a person's privacy was justified upon. Briefly, these were; the express consent of the aggrieved person, for special private or public benefit and at the request of authorities granted by law.
Penal Liability
Article 135 of the Turkish Penal Code imposes imprisonment on perpetrators misusing or exploiting personal data whilst Article 136 of the Turkish Penal Code enforces prison sentences for perpetrators who obtain personal data illegally. However, once again, express consent of the aggrieved person is considered a justification and may relieve such penal.
Although it was stressed that governments are mainly obliged to take the required measures in terms of Data Protection, this responsibility should also be undertaken in conjunction with other parameters. As it is also stated in the “ISO/IEC 17799:2005-Information Technology Security Techniques and Code of Practice for Information Security Management; " information security and data protection can only be achieved by implementing a suitable set of controls, including policies, processes, procedures, organized structures and software and hardware functions”. These controls need to be established, implemented, monitored, reviewed and improved, where necessary, to ensure that both the customer data protection and the business objectives of the organization are met. This should be done in conjunction with other business management processes.
In light of the information that has been set out, there are 4 main and globally respected principles for data Protection and Privacy;
- Confidentiality
- Integrity
- Availability
- Authentication
Regardless of how many measures we put in place or how much responsibility we put on the governments' shoulders, it is always going to be a matter of caution and diligence when giving out personal information. It's also imperative on the event that we are obliged to or forced to give personal info in order to receive a specified service like banking or etc. We, as citizens and as consumers, the primary subjects of data and information, should be aware of the importance of our personal rights and the meaning of privacy. This awareness will be the driving force behind the governments' initiatives for them to take the required actions.
The world is not round anymore as Galileo stated hundreds of years ago, “it became flat”. People can plug, play, connect and collaborate with equal power than ever before-which is what is happening in the world- this helps us to understand the impact of all the technological changes evolving at such speed today. We therefore need to be alert and place importance to protection of our human rights parallel to the benefits and exposure gained through exchange of information as the world becomes flatter.
Emre Berk
Attorney-at-Law
Bener Law Office, Istanbul & London
Emre.berk@bener.com.tr
* The information contained in this document is provided for informational purposes only, and should not be construed as legal advice on any matter.
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