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DATA PRIVACY COMPLIANCE IN THE CLOUD MADE EASYUnderstand Cloud and Data Protection Law in only 4 easy steps. Plus highly relevantlegal information for 33 countries. Provided by EuroCloud and 53 European lawyers.
OBLIGATION OF NOTIFICATION OF PERSONALDATA VIOLATIONS TO TURKISH DPA22.10.2019
Law on Protection of Personal Data numbered 6698 provides under the article titled“Data Security Liabilities” that, data controllers must take all necessary technical andadministrative measures to ensure the appropriate level of security to:
• Prevent unlawful processing of personal data,
• Prevent unlawful access to personal data,
• Maintain safeguarding of personal data.
Within the scope of the same article, if the data processed is obtained/ accessed by third parties throughunlawful means, the data controller is obliged to inform the relevant persons that are affected by the breach andthe Board of Turkish Data Protection Authority (Board) as soon as possible and the Board may, if necessary,declare it on its website or by any other method it deems appropriate.
The obligation attributed to the data controllers under the said article begins with the detection of a violation bythe data controller.
Regarding how the obligation to inform ”as soon as possible” will be implemented, the Board takes into accountthe detailed regulations regarding data breach notifications provided in the European General Data ProtectionRegulation (GDPR), which abolishes the EU Directive No. 95/46/EC, which is the source of the Law. In order toavoid any inconsistency between the decisions to be taken by the Board on such a matter and to provide astandardization in practice; Board has stated in its decision dated 24.01.2019 and numbered 2019/10 that therules stated under the Law “as soon as possible” must be understood as within “72 hours” and within this scope,the data controller must; notify the Board within "72 hours” at the latest as of the date of learning of the breach,determine and notify the persons affected by the data breach as soon as possible within reasonable time. If thecontact address of the person can be reached, such persons will be informed directly, and if not, the notificationwill be made by appropriate methods such as the publication of the breach on data controllers’ website.
If the Board cannot be notified within 72 hours with justifiable explanation by the data controller, the reasons forthe delay must be explained to the Board along with the notification.
The Personal Data Violation Notification Form prepared by the Board must be used in the notification to theBoard.
An administrative fine of up to 1 million TL is imposed by the Law in case of non-fulfillment of such notificationobligation, independent from the assessment whether there is a breach of data security obligations in cause ofthe breach etc. Unlike the source regulation, Turkish Data Protection Law regulates the notification of each andevery data breach. It is therefore expected that the data controller will report any and all events without having toassess whether the affected person will be exposed to risks of the breach. However, this procedure seems to becontrary to the normal flow of life considering that even sending an e-mail to the wrong address is considered asa data breach, but not all cases are considered to be subject to notification when it causes no risks to the datasubject.
While determining the administrative fines to be applicable to breach of notification obligation, without doubt,certain criteria are taken into account in determining the fine, such as for how long the violation has not beenreported, and the risks attached to the breach of data security, number of persons affected by the breach, but theBoard has not yet issued a guideline specifically on this.
In recent decisions, the Board has imposed an administrative fine for late notification upon receipt of data breachnotification from the data controller and it has also issued fines for not taking the sufficient measures to protectdata. In addition, following the complaints made to the DPA by data subjects or investigations made ex officio,administrative fines have also been imposed due to the failure of the data controller to take sufficient technicaland administrative measures to ensure data security.
In the event of any data breach, the extent of which countries are affected by such breach, especially in globalcompanies, may not be determined easily, or the process, research and technical analysis may take a long time.This may also lead data controllers to be exposed to fines for late reporting of the infringement, but theimportant thing is to explain how the process is carried out in a transparent manner in the notification to theAuthority, to explain the actions taken and to cooperate with the Board. There is no doubt that the Board will takeall these conditions into account when making a decision, even if there is such late notification. On the otherhand, close communication with the Board may also be effective in determining whether the Board publishes thebreach directly on its website and make it public. Undoubtedly, each data breach notification may be alwayssubject to a separate administrative fines for not taking the necessary administrative and technical measures, aswell as the sanction of administrative fine for late breach.
Last, it is seen from the summary decisions issued by the Board that the Board generally concludes in cases ofdata breaches that the data controller has not taken sufficient technical and administrative measures to ensurethe data security, and that it is decided without going through a specific technical review. In particular, even theway of being aware of the violation gives the Board a perspective to reach a conclusion on the matter andconclude whether sufficient measures are taken or not. However, the law imposes an obligation on the datacontroller to take all necessary technical and administrative measures to prevent unauthorized access topersonal data and to maintain the appropriate level of security in order to protect personal data and it should beunderstood from this provision that the Board must examine separately whether these measures have beentaken in each violation. It is seen that the Board has broadly interpreted all the necessary technical andadministrative measures to ensure the appropriate level of security. Turkish DPA’s approach to data breachcases indicates that the liability of the data controller for data security is at the highest level and must bediligently observed. It is also advised that data controllers to fill in the data breach form provided by the TurkishDPA in detail and if possible, prefer to have a meeting with the Turkish DPA to explain the incident and theprecautions taken in detail at first hand. We believe that such an approach would be more effective in convincingthe Turkish DPA otherwise, merely filling in the relevant form with minimal information will not be helpful andmost probably the incident will be announced on the web site right after notification.
Article provided by: Begüm Yavuzdoğan Okumuş (Gun+Partners, Turkey)
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