Turkey's newly enacted Law on Protection of Personal Data ("DP Law") is based on EU Directive 95/46/EC ("Directive"). Although the DP Law is mainly based on the Directive, it is not identical and it differs from the Directive in certain points. The main difference between the Directive and the DP Law is that Directive focuses on the act of processing personal data rather than the parties to such processing, whereas the DP Law mainly provides rights and imposes obligations on the parties of a data processing act.
Sensitive Personal Data
The Directive sets out special categories of personal data as "racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership and health or sex life". The DP Law also considers such data as sensitive data, but also adds "appearance and clothing, data relating to criminal records and biometric and genetic data" to the list of special categories of personal data. Both the Directive and the DP Law stipulates that sensitive personal data may only be processed upon the data subject's consent. In terms of processing of sensitive personal data without consent of the data subject, the Directive sets out detailed provisions. On the other hand, the DP Law states that any special category of personal data - except for data related to health and sex - may be processed without the data subject's explicit consent, if processing is regulated by laws. With respect to personal data regarding sexual life and health; these categories may be processed without data subject's explicit consent for the purpose of protecting public health, preventive medicine, medical diagnosis, treatment and care services, planning and management of health services and their finance under DP Law.
Transfer of Personal Data
The DP Law distinctively regulates the transfer of personal data, by distinguishing the transfer of personal data in Turkey and abroad. The Directive regulates transfer of data to non-EU countries and requires that such third party countries must provide an adequate level of protection.
DP Law states that personal data may only be transferred with explicit consent of the data subject. Accordingly, the adequate level of protection requirement only applies in cases where data processing without the data subject's explicit consent is legitimate. In such a case, the data may be sent outside of Turkey without obtaining explicit consent of the data subject, provided that the relevant foreign country provides an adequate level of protection. Similar to the application of the Directive, there is an authority, i.e. the Data Protection Board ("the Board") to determine whether the relevant foreign country provides an adequate level of protection or not. However, since the Board will be established within 6 months, until October 7, 2016, this procedure will be enlightened once the Board is established and the provision is implemented in practice.
In addition to the rules explained above, a new provision that is not included within the Directive states that where Turkey's or the data subject's interests will be seriously undermined, personal data may be transferred abroad upon the authorization of the Board by taking the relevant public institution or authority's opinion. The provision requires Board's permission, which is rendered by taking the relevant public authority's opinion, for transfer of data which may seriously undermine data subject's or Turkey's interests.
The provision is ambiguous as it does not (i) specify any criteria to assess or determine how the transfer of data abroad may seriously harm Turkey's or relevant person's interest, (ii) precisely define any situation or instance in which transfer of data abroad will be subject to the Board's permission and (iii) designate any authority or specify who will decide whether permission is required with respect to the transfer of data abroad. The DP Law does not define or determine the scope of or specify any condition or term referred therein. In practice, this ambiguity may lead to stretching the purpose of this provision far.
Since there is no specification or criteria as to these ambiguous conditions that require the Board's permission, the possible consequences of implementation of this provision is not foreseeable at this stage. The provision should be considered an exceptional requirement for
highly sensitive issues, as otherwise would serve against the purposes of the DP Law and the article related to data transfers abroad.
Data Controllers' Registry
Presidency of the Board will establish and maintain publicly available register of controllers (the "Data Controllers' Registry") under the supervision of the Board. Real or legal persons processing personal data must enroll to the register before they start processing. However, the Board may provide an exemption from the obligation to enroll to the registry in so far as this is in line with the objective criteria to be determined by the Board such as the characteristics and the number of data to be processed, whether or not data processing is required by law or whether or not data will be transferred to third parties. The application to enroll to the register will be made through a notification that includes certain information as set out by the DP Law. This is a procedure similar to the obligation to notify the supervisory authority which is set forth in Article 18 of the Directive. However, the European Council's approach on the matter differs from the DP Law's approach. The European Council's approach aims the final control, eliminating notifications and limiting authorizations to the bare minimum and focuses on notification of data breaches. In this regard, the DP Law appears to be more restrictive than the EU legislation in terms of the detailed registry approach.
The Data Protection Board and Data Protection Authority
The DP Law requires establishment of a Personal Data Protection Authority ("Authority") as a public entity, which has administrative and financial autonomy, in order to perform the tasks assigned to it by the DP Law. The DP Law also states that the Data Protection Board will be the decision making organ of the Authority, which performs the tasks and exercises its authority assigned to it by the DP Law and other legislation, independently and under its own responsibility. It is also stated that on issues related to its duties, the Board cannot be given any order, directive, advice or suggestion by an organization, an office, an authority or a person of any kind. The EU Directive requires member states to establish authorities to watch and supervise the processing of personal data and principles in regards to this processes, which shall
exercise their functions with complete independence from the legislative and executive bodies and emphasizes that this independence is an essential component of the protection of individuals in regards to the processing of personal data; whereas the DP Law states that the Data Protection Authority shall be related to the Prime Ministry which might cripple independency of the Authority.
The differing provisions of the DP Law and the EU Directive, which are not limited with the foregoing, and how they will apply in Turkish jurisdiction are expected to be clarified during the upcoming months, once the secondary legislation is enacted and the relevant authorities are established.
(First published in The In-House-Lawyer on October 19, 2016)