The Law on the Protection of Personal Data numbered 6698 published at the Legislative Journal dated April 7, 2016 and No. 29677, in force by October 2016.

This Law sets forth certain new liabilities for the data supervisors who process the received personal data, and also, according to Article 31 Sub article 3 of the Law, data supervisors are required to make sure that the personal data that was processed prior to the publication of this Law complies with the provisions of this Law within 2 years from the date of publication (and therefore, until April 7, 2018).

What is personal data?

In order to review the Law of Protection of the Personal Data No. 6698, terminology used for personal data shall be inspected. Article 2 of the Law defines the personal data as “Any kind of information that belongs to a natural person (consumer, client, agency owner, company partner, employee, etc.) whose identity is determined or may be determined”. In this respect the below listed examples of data may be deemed as personal data:

• ID Number
• ID and Passport info
• Residency/Contact info (phone number, address, e-mail address)
• Image/ voice recording/photograph
• Credit card info/ Bank account number
• Info required for visa applications

Additionally, as per Article 6, race, ethnicity, political view, philosophical belief, religion, sect or other beliefs, dress and appearance, association and foundation memberships, health condition, sexual life, info regarding the criminal sentences and security measures, criminal records, biometric and genetic information of an individual shall also be considered as ‘private personal data’.

According to Article 4, personal data may only be processed if it is stored in compliance with the law and the good faith principle, and is stored correctly and up to date, with a motive of clear, legal and specific purposes, relating to the purpose of data processing, in a limited and proportional manner and for limited duration.

Whereas Articles 5 and 6 of the Law restricts the processing of personal data and private personal data without the express consent of the data provider.

Furthermore, Articles 8 and 9 of the Law restricts the transfer of personal data to third parties and/or to abroad (to jurisdictions out of Turkey) without the express consent of the data provider.

III. DATA SUPERVISORS AND THEIR LIABILITIES

According to the Law, persons and/or entities that store and designates the purpose and facilities of processing of personal data shall be considered as “data supervisors” and legal or natural persons that processes the data in the name of the data supervisor by the authority of the data supervisor shall be deemed as “data processors”.

Therefore natural and/or legal persons that gather, keep, process and preserve such data belonging to their customers and/or clients and/or other people in their own databases shall all be considered as “data supervisors”.

Liabilities of the data supervisors regarding the data security are set forth in sub article 1 of Article 12 of the Law. Accordingly, data supervisors are obliged to prevent the illegal processing of and unauthorized access to personal data and they need to take all necessary technical and administrative measures to provide the proper security level of the kept data.

In addition to the above, Article 10 of the Law sets forth that data supervisors shall be liable to provide the relative person (data provider) the following information:

• Title of the Data Supervisor (if exists identity and address information of the data keeper)
• Purpose of Data Processing
• To whom and with what purpose the data can be transferred to
• Legal reason and method of the data gathering
• Other liabilities regarding the rights of individuals mentioned in the Article 11

For more information and questions please email b.orhan@londonlegalint.co.uk Mrs Holmgren is the senior partner in London Legal International and is in charge of our Turkish Civil Law division.

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Based on the above, in the context of protection of consumer and effective as of 1 January 2017, the relevant legislation “Protection of the Consumer Act” is imposing higher fines for certain violations.

Particularly, companies which use unfair terms in consumer agreements; fail to comply with laws of direct sales agreements and make misleading representation and/or advertising will be subject to a higher fine per violation/per agreement.

In this regard, companies are recommended to comply with current legislation in order to avoid facing financial sanctions. If you require assistance in Turkish company law to determine whether your company is in compliance with Turkish laws, please contact our team.

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It should be noted that the Law only refers to the courts of a foreign jurisdiction and does not require any reference to specific courts in such jurisdiction.

However, recent rulings of the Turkish Supreme Court provide that when choosing foreign courts to have jurisdiction to settle disputes arising out of an agreement, the specific court in the relevant jurisdiction must be precisely referred to, rather than a general reference to the courts of such jurisdiction (e.g., “English courts”) as such a reference would be regarded as null and void. In this regard, Turkish Supreme Court states that the jurisdiction clause should not be considered by the Turkish courts unless the reference is made to a specific foreign court.

Please be informed that Turkish Supreme Court’s rulings are not binding for the courts of first instance in Turkey however the Courts tend to comply with the Supreme Court’s rulings therefore should the parties fail to specify the foreign Court he Turkish Court may decide that they have jurisdiction to hear the dispute.

If you need any assistance with Turkish law and disputes that might arise from contracts, please contact our team.

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As per the Circular, Turkish public institutions and organisations are encouraged to consider arbitration under the ISTAC Arbitration and Mediation Rules which have been drafted by taking into consideration all the modern and frequently used international arbitration and mediation rules and as a possible dispute resolution mechanism in their domestic and cross border transactions.

It should be noted that the Prime Minister’s recommendation is not binding however it is expected for the public bodies to comply and use ISTAC for arbitral matters. Hence we are in the opinion that non-governmental bodies and private organisations will be using ISTAC more in their contracts as well, as opposed to domestic litigation.

ISTAC is an independent arbitration institution and is competent to hear disputes in both foreign and domestic nature providing investors, businesses and companies especially from the Gulf, Middle East, Near East and North Africa a cost and time effective way to settle their disputes in an impartial, flexible and confidential manner in international standards.

To view ISTAC’s website please click here.

https://istac.org.tr/

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