Introduction
Personal data refers to any type of information related to persons. In this regard, not only information regarding religion, language, race, origin, private life, health, habits, behaviour patterns, sexuality but also other information such as meeting minutes including the participant lists along with IP addresses, and fingerprints are considered within the scope of personal data. Personal data has significant effects both at the individual level and at a greater level where such data is organized in clusters for certain purposes. It became ordinary in our daily operations to share personal data with the third parties such as identification and contact information. The scope of the shared personal data may be expanded according to the operation.
Although no specific regulation regarding the protection of personal data exists in Turkey at the moment, Draft Code on the Protection of Personal Data (the "Draft Code") that is prepared by way of modelling European Union's Directive numbered 95/46 ("Directive No. 95/46") published in 1995, is on the agenda of the Council of Ministers in accordance with the European Union compliance procedure. The Draft Code has faced with several amendments since 2003 and is submitted to the approval of the Council of Ministers on February 2013. The Council of Ministers sent back the Draft Code for revision by anticipating certain amendments and it is expected that the Draft Code shall be enforced in the near future.
In this article, the Draft Code that is expected to be enforced in the following days shall be examined together with the other legal regulations and the new regulations that are intended to be introduced in terms of personal data protection by considering the current situation of Turkey.
Existing Regulations
Although Turkey has signed the Directive No. 95/46, no specific regulation in the domestic law has been adopted yet. Thus, the personal data protection is regulated within the framework of the main legislation such as Turkish Constitution, Turkish Civil Code No. 4721, and Turkish Criminal Code No. 5237.
The confidentiality of private life and communication and the right to demand the protection of fundamental rights and freedoms are guaranteed under Turkish Constitution. Additionally, Article 23 of the Turkish Civil Code regulates protection for the offenses realised with the consent of the person, Article 24 regulates protection for offenses realised without the consent of the person and Article 25 regulates lawsuits that may be filed by the person whose personal rights are attacked or under such threat. Personal data recording under Article 135, unlawful obtainment or sharing of the data under Article 136 and failure to dispose the data placed under Article 138 of the Turkish Criminal Code respectively are stipulated as crimes and certain sanctions are imposed for the said acts.
In addition to the foregoing, personal data protection is regulated under specific laws such as Labor Law No. 4857, Electronic Signature Law No. 5070, Notary Law No. 1512 and Regulation on the Processing of Personal Data and Protection of Confidentiality in Electronic Communication Sector. Within the scope of personal data protection, it is worth to note that safety measures are stipulated particularly in the Turkish Criminal Code and other legislation for the legal entities which are engaged in committing acts that are considered as crimes.
Directive No. 95/46 and Regulations in the Draft Code
It is aimed to provide uniformity in the legislations of European Union member states regarding personal data protection through the Directive No. 95/46 and fundamental concepts on the personal data protection which have been set out. Under the regulations within the scope of Directive No. 95/46, the scope of personal data protection is limited to real persons and it is stated that the member states may envisage specific regulations for the legal entities in their domestic laws. Furthermore, a distinction was made between the personal and sensitive data in Directive No. 95/46. According to this, ethnicity, origin, political, religious and philosophic views, union memberships, information on health and sexual life are determined as sensitive data. Accordingly, processing of sensitive data is prohibited unless there is an exceptional case such as the explicit consent of the data owner, existence of a superior benefit or a requirement by the court for allegation and defence. In addition, the other principles highlighted within the scope of Directive No. 95/46 are the requirement to collect the data lawfully by any means and to inform the data owner on processing his/her data, the right to correct incomplete and false data and prevention of and objection to data processing. With regard to the supervision of personal data protection, in the Directive No. 95/46 it is decided to establish an independent data protection authority and the data transfer from the member states to other states are regulated through certain rules and procedures.
The regulations in the Draft Code are similar with the Directive No. 95/46. Within the scope of the Draft Code, all information belonging to real persons and legal entities that are specified or specifiable are considered as personal data, all transactions with personal data are considered as data processing and the processing of such data is subject to the consent of the data owner except for the situations determined in the Draft Code. It is stipulated under Article 9 of the Draft Code that the unnecessary personal data shall be rendered as anonymous or deleted if it is not necessary to keep the said data as a means of protection measures or method of proof. In line with the Directive No. 95/46, Draft Code stipulates that the personal data of the persons regarding race, political view, philosophical belief, religion and religious sect cannot be processed unless there is an exceptional case as specified therein.
As one of the major regulations introduced by the Draft Code, an independent Personal Data Protection Board (the "Board") shall be established in line with the Directive No. 95/46 in order to control the personal data protection. Furthermore, the companies shall be obliged to register to the "Data Processing Registry" before processing any data. The Board to be formed within the scope of the Draft Code shall undertake important tasks such as making necessary reviews and controls, imposing administrative fines and, settling complaints. As also regulated in the Directive No. 95/46, in case of hesitation regarding whether sufficient protection is ensured during the transfer of personal data to other countries, the Board shall make a decision for such transfer. Independence of the Board is guaranteed in the Draft Code by regulating that the Board shall consist of seven members and it shall not take order from any organ, office, authority or person. Any person or company processing data on its own behalf shall be obliged to fulfill the needs of the data owner, such as informing the data owner in advance on the issues included in the Draft Code, providing data security and answering the data owner's questions.
Criminal sanctions are imposed under Turkish Criminal Code No. 5237 for the unjust and unlawful data processing and other administrative sanctions are imposed under Article 37 of the Draft Code. If the crimes within the scope of the Draft Code are committed as part of the activities of a legal entity, then the legal entity in question shall be subject to the security measures specified for the legal entities in the Turkish Criminal Code No. 5237.
Personal data protection is of great importance especially for the multinational companies. European Union regulations concerning how the multinational companies shall keep personal data of their employees envisage highly strict procedures in this regard. In line with the Directive No. 95/46, Article 14 of the Draft Code regulates that the data may be transferred abroad on the condition that an equivalent and efficient protection mechanism exists in the country requiring the personal data. In the event that an equivalent and efficient mechanism does not exist in the country requiring the personal data, it is regulated that the personal data may be transferred only on the following condition: the related person gives an explicit consent; an agreement exists between the data registry owner and the related person; if it is necessary to prevent a crime; if the data transfer is necessary or legally obligatory in order to determine, enforce or protect a right; if the life or physical integrity of the person who is the subject of the data is at stake or the data transfer is realised through the publicly available registries. It is worth mentioning at this point that Turkey is not considered as a credible country due to the fact that there is no specific regulation in Turkey on personal data protection in the current situation. Thus, transfer of data belonging to several multinational companies to Turkey is not possible for the time being.
Whistleblowing Policy
Another issue, closely linked to personal data protection, is the whistleblowing policy. This policy is defined as "reporting illegalities of the current or previous employees and their dangerous and unethical practices to the employer" by the International Labour Organisation. Main purpose of the whistleblowing policy in companies is to eliminate illegal practices by way of establishing a secure complaint mechanism so that the employees shall not remain silent towards such illegalities. With this method, it is intended to prevent employees from tolerating anxious work environments by way of remaining silent towards illegal practices and form more transparent and secure management structures. Although there is no specific regulation in Turkey at the moment regarding the whistleblowing policy, there does not exist a regulation preventing companies to set out internal whistleblowing mechanisms as well. Therefore, in the current situation, several companies conduct studies to prevent illegal practices by way of establishing whistleblowing mechanisms in their current management structures.
Since there is no explicit regulation in Turkey regarding the whistleblowing policy, problems regarding personal data protection may arise when employees raise complaints about the persons acting illegally. There are grey areas on the processing of personal data belonging to both the whistleblower and the person engaging in illegal practices when the employees complain about the illegalities. Since the Draft Code has not been enforced yet, general provisions existing in the Turkish legislation shall be applied to the whistleblowing mechanisms to be established in the companies. In this regard, when the personal data protection rules are violated, provisions regarding the protection of private life in the Turkish Criminal Code No. 5237 shall be applied. Although the Draft Code shall not include any specific regulation on the whistleblowing policy, rules on the personal data protection included therein shall be taken into consideration in determining and conducting these policies and mechanisms.
Conclusion
When the European Union standards are taken into consideration, Turkey is not considered as a credible country. In this regard, the Draft Code that is expected to be enforced in the following days stands out as a framework regulation on the personal data protection and it shall fill an important gap in the Turkish legal system. The Draft Code shall not only offer the possibility to build up legislation on the protection of personal rights and freedoms but also it shall provide the opportunity to attune with the European Union law.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
