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RATIFICATION OF 1981 STRASBOURG CONVENTION AND THE DRAFT DATA PROTECTION LAW OF TURKEY

RATIFICATION OF 1981 STRASBOURG CONVENTION AND THE DRAFT DATA PROTECTION LAW OF TURKEY
 

Ratification of Convention

Turkey finally ratified the Council of Europe’s 1981 Strasbourg Convention for the Protection of Individuals with regard to Automatic Processing of Data on February 18th, 2016. The ratification of this Convention is one of the major steps for the approval of the draft data protection law (“Draft Law”) by the Turkish Parliament which had been awaited for at least 35 years.
 
Processing Personal Data

The Draft Law is similar to the European Union data protection laws and regulations as the basis of this Draft Law is EU Data Protection Directive (95/46/EC) which includes the processing of personal data. The Draft Law defines “processing” as any operation or a set of operations that are performed upon personal data, such as collection, recording, storage, adaptation or alteration, disclosure by transmission, classification, dissemination or otherwise making available, whether or not by automatic means. According to the Draft Law, personal data must be processed in a way compatible with the law and rules of veracity (fairly and lawfully). They must be collected for specified, clear and legitimate purposes and they must not be reprocessed contrary to those purposes. As per Article 5/1 of the Draft Law, personal data may only be processed with the consent of the data subject, however with some exceptions listed in Article 5/2 of the Draft Law. The exceptions of this rule have been indicated in Article 5/2 as follows: clear specification by laws, vital interests of a person who is incapable of explaining his/her consent, conclusion and performance of the contract, making public by the data subject and fulfillment of legal responsibilities of data controller or it is mandatory to process the data for the exercise, establishment and protection of a right. The Draft Law also separates the processing of personal data which have special categories (i.e. gender, political view, ethnic origin etc.). According to Article 6/2 (a), special categories of data may be processed if the data subject has given his explicit consent. Similar exemptions also apply to the processing of data with special attributes.

Transfer of Personal Data

In respect of accession to the European Union, data protection is one of the major topics of Turkey as most of the international corporations and institutions that have offices in Turkey face problems with processing the personal data of their employees and transferring the data abroad. Article 8 of the Draft Law clarifies the transfer of personal data from Turkey to abroad. As a rule, personal data can be transferred to another country on the condition that there is an adequate level of protection in the foreign country from which the data is requested and the conditions specified in the Draft Law are met. Please kindly be informed that the provisions regarding the transfer of personal data shall enter into force in 6 months as of the publication of the Draft Law in the Official Gazette.

Data Protection Agency

A Data Protection Board is going to be established as a public organization with administrative and its own financial autonomy to perform the duties determined under the Draft Law. The Data Protection Board is affiliated with the Ministry of Justice however it is stated in the Draft Law that the Data Protection Board is an independent institution. The Data Protection Board is obliged to audit and investigate the complaints and notifications in respect of compliance to the rules of the Draft Law, take interim injunctions for prospective damages, prepare regulatory transactions, cooperate with national and international institutions etc.
 
Conclusion

Although it is expected that Turkey will have a Data Protection Law within the coming months as it was put before the Grand Assembly of Turkish Parliament in January 2016, it is seen that the Draft Law still has insufficient rules vis a vis EU laws and regulations. However, since the Convention of the Council of Europe for the Protection of Individuals with regard to Automatic Processing of Data has been ratified; in case of a conflict, the Convention of the Council of Europe for the Protection of Individuals with regard to Automatic Processing of Data will prevail over national laws addressing the protection of personal data.

Please contact us if you have any questions about the Draft Law.
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