Turkey: Comparative Legal Guide: Technology

This country-specific Q&A provides an overview to technology laws and regulations that may occur in Turkey.

It will cover communications networks and their operators, databases and software, data protection, AI, cybersecurity as well as the author's view on planned future reforms of the merger control regime.

This Q&A is part of the global guide to Technology. For a full list of jurisdictional Q&As visit http://www.inhouselawyer.co.uk/index.php/practice-areas/technology

1. Are communications networks or services regulated? If so what activities are covered and what licences or authorisations are required?

The provision of telecommunication services is regulated in Turkey and is subject to authorization. The activities covered are provision of electronic communication services and the establishment and operation of electronic communication networks and infrastructure.

Pursuant to Electronic Communications Law w. no. 5809 and the Regulation on Authorisation in the Electronic Communications Sector, entities must obtain authorisation prior to commencing the provision of telecommunication services. There are two types of authorisations:

  • Authorisation by notification to the Authority; and
  • Authorisation by obtaining a licence for those services which require spectrum allocation.

For services which spectrum allocation is not required, entities are entitled to automatic authorisation after notifying the Authority as to the commencement of the electronic communication services.

2. Is there any specific regulator for the provisions of communications-related services? Are they independent of the government control?

The Information and Telecommunication Technologies Authority ("BTK") is the authority for regulating and monitoring the telecommunications sector in Turkey. The Authority is independent and regulates/supervises the telecommunications sector in Turkey with regards to authorisation, tariffs, access, numbering, spectrum management, licensing, market supervision etc.

3. Does an operator need to be domiciled in the country? Are there any restrictions on foreign ownership of telecoms operators?

Yes, the operator must be domiciled in Turkey and must be incorporated in Turkey as a limited or joint stock company. There is no restriction on foreign ownership of telecoms operators, 100% shares of the local entity can be non-Turkish owned.

4. Are there any regulations covering interconnection between operators? If so are these different for operators with market power? What are the principal consumer protection regulations that apply specifically to telecoms services?

The Regulation on Access and Interconnectivity covers interconnection between operators. Pursuant to the Regulation all operators are obliged to "negotiate" terms of interconnection with other operators with an aim to reaching an agreement within a reasonable time. The Authority has the right to impose an interconnection obligation on the operators if the operators do not reach an agreement within a reasonable time.

In cases where the operator denies providing interconnection or imposes unreasonable terms and if the Authority decides that the actions of that operator damages competition or damages the interests of end-users, the Authority may oblige such operator to provide interconnection.

For operators with significant market power, Authority may oblige operators to provide interconnection/access on a non-discriminatory basis and with the same conditions and qualities that apply to their subsidiaries or partners.

5. What legal protections are offered in relation to the creators of computer software?

Computer software are protected as "works" under the Intellectual Property Law w. no 5846. While computer software cannot be patented in Turkey, it is possible to protect computer software as a copyright.

The creators of a computer software (artist) owns all the financial and moral rights to the software and has the right to protect these rights and may request from the court to decide for the following:

  • Cease infringement,
  • Prevent infringement,
  • Damages (Up to 3 times the value of the software if there would be a license agreement)

Further, infringement of moral and financial rights is subject to imprisonment between 1 to 5 years or TRY 182.500 (€ 45.500 approx.) of judicial fine.

6. Are specific intellectual property rights in respect of data/databases recognised?

Yes, databases are categorized as compilation works under IP Law w. no 5846 and the financial and moral rights of the artist (creator of the work by compiling data based on a system) are protected as copyrights.

The protection cannot be extended to the data within the database, meaning that the protection is limited to the database itself, and the contents are not protected.

7. What key protections exist for personal data?

The Law on Protection of Personal data w. no 6698 protects personal data. The Law which is similar to the 95/46 Directive is based on fundamental data protection principles.

Data controllers must comply with the principles set out in Article 4 of the Data Protection Law, that is, that the data must be:

  • processed fairly and lawfully;
  • accurate and up-to-date;
  • processed for a specific, explicit and legitimate purpose;
  • relevant, adequate and not excessive;
  • kept for a term that is necessary for the purpose for which the data is being processed.

Personal data can be processed by obtaining explicit consent of the data subject or with any of the 7 grounds mentioned below;

  • Processing is expressly ordered/required in the law.
  • Processing is necessary for the protection of the data subject's or third parties' life or physical integrity.
  • For processing personal data of contracting parties, provided the processing is directly related to the execution or performance of a contract.
  • Processing is mandatory for the data controller to perform his/her legal obligations under the law.
  • Personal data has been made open to the public by the data subject.
  • Processing is mandatory for assigning, using or protecting a right.
  • Processing is mandatory for the legitimate interest of data controller, provided the processing does not harm the data subject's fundamental rights and freedoms.

Further, data subjects have certain rights such as right to request deletion, rectification or request damages.

8. Are there restrictions on the transfer of personal data overseas?

Personal data must not be transferred to foreign countries without the data subject's explict consent. However, personal data can be transferred outside Turkey without the consent of the data subject if any of the seven grounds referred to in Question 8 exists and if either:

  • There is an adequate level of data protection in the foreign country or
  • The data controllers in Turkey and the receiving country undertake that the data will be protected in writing, and the approval of the Data Protection Authority is obtained.

The list of countries which provide adequate level of data protection has not yet been published by the DPA as of 20 July 2017.

9. What is the maximum fine that can be applied for breach of data protection laws?

Maximum fine is TRY 1.000.000 (EUR 245.000 approx.) however please note that this fine is for each case of a breach. Therefore the fine may go higher.

10. Are there any restrictions applicable to cloud-based services?

There aren't any specific restrictions applicable to cloud-based services however if the server of the cloud service provider is located outside of Turkey, this is accepted as an international transfer and restriction mentioned in Question 9 would apply.

11. Are there specific requirements for the validity of an electronic signature?

Yes. Turkey has an Electronic Signature Law w. no 5070. Pursuant to the Law, only those electronic signatures which are obtained from licensed Electronic Certificate Service Providers are valid.

Electronic signatures shall have the following requirements;

  • exclusively linked to the signature owner,
  • generated with a secure electronic signature creation device which is maintained under the sole control of the signature owner,
  • enables the identification of the signature owner based on a qualified electronic certificate,
  • enables to detect whether signed electronic data has been changed or not.

Foreign Electronic Certificates: The legal effects of electronic certificates issued by any Electronic Certificate Service Provider established in a foreign country shall be recognized under international agreements. In case that electronic certificates issued by any Electronic Certificate Service Provider established in a foreign country are recognized by an Electronic Certificate Service Provider established in Turkey, such electronic certificates are deemed to be Qualified Electronic Certificates.

12. In the event of an outsourcing of IT services, would any employees, assets or third party contracts transfer automatically to the outsourcing supplier?

No, it is accepted that the outsourcing supplier is in the nature of independent contractors and employees, assets or third party contracts do not transfer automatically.

13. If a software program which purports to be an early form of A.I. malfunctions, who is liable?

While there is no specific legislation as to A.I. in Turkish Law, the owner and the producer of the software program would be held liable by applying "strict liability" rules under the Turkish Code of Obligations through analogy.

14. What key laws exist in terms of obligations as to the maintenance of cybersecurity?

There is no specific law on cybersecurity under Turkish Law however there are cybersecurity obligations and obligations to establish a data security management system in sector specific regulations such as the Electronic Communications Law, Banking Law, Law on Regulation of Electronic Commerce.

Further, Pursuant to Law on Protection of Personal Data w. no 6698, data controllers are under an obligation to keep personal data secure and take necessary measures to prevent illegal access to such data.

15. What key laws exist in terms of the criminality of hacking/DDOS attacks?

Turkish Penal Code w. no 5237 has a section specific for cyber crimes. Pursuant to the Code;

  • Hacking into a system is subject to imprisonment of up to 1 year or up to TRY 36.500 (€ 9.150) judicial fine.
  • Interfering or preventing proper running of the system is subject to imprisonment of 1 to 5 years.
  • Altering, destroying, transferring, preventing access to data on a system is subject to imprisonment of 6 months to 3 years.

16. What technology development will create the most legal change in the jurisdiction?

The use of Artificial Intelligence will create the most legal change in Turkey as there is currently no legislation which deal with AI. We believe we will see the first impact with self-driving cars and driver assistance systems.

17. Which current legal provision/regime creates the greatest impediment to economic development/ commerce?

It is not possible to point out one specific regulation or regime as the greatest impediment to economic development/commerce. We believe putting in place less restrictive regulations for certain sectors (i.e. telecommunications, e-payments, data protection) may help bring more foreign investment.

18. Do you believe the legal system specifically encourages or hinders digital services?

We believe that our legal system encourages digital services by trying to keep up with the technological developments. While there are certain issues regarding taxation of digital service providers that are not located in Turkey, it is fair to say that the legal system is creating a safe environment which both protect the consumers and digital service providers.

19. To what extent is the legal system ready to deal with the legal issues associated with artificial intelligence?

While it is possible to deal with legal issues with AI using general principles of law in Turkey, revision in legislation is required to be in a better position.

Originally published by The Legal 500 & The In-House Lawyer.

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.

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Authors
Burak Özdağıstanli
 
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