Data protection and cybersecurity laws in Turkey

Data protection

1. Local data protection laws and scope

2. Data protection authority

3. Anticipated changes to local laws

There are no anticipated changes.

4. Sanctions & non-compliance

The DPL with the Turkish Criminal Law No. 5237 contains details regarding enforcement.

Administrative sanctions:

The DPA has powers to impose fines of up to the greater of:

  • TRY 9,834 to TRY 196,686 (EUR 1160 to EUR 23,267) in the case of non-compliance with information obligations;
  • TRY 29,503 to TRY 1,966,862 (EUR 3,490 to EUR 232,675) in the case of non-compliance with the data security obligations;
  • TRY 49,172 to TRY 1,966,862 (EUR 5,816 to EUR 232,675) in the case of non-compliance with the decisions of the Board; and
  • TRY 39,337 to TRY 1,966,862 (EUR 4,653 to EUR 232,675) in the case of non-compliance with the requirements regarding the registration with the Registry.
Criminal sanctions:

There are various criminal offenses under the DPL and the Turkish Criminal Law No. 5237 including: 

  • Illegal recording of personal data;
  • Illegal recording of special categories of personal data;
  • Illegal transfer or acquisition of personal data or making personal data available to the public;
  • If the illegal transfer, acquisition, or public disclosure is related to the statements or photos/videos of minors who have committed crimes as described in the Turkish Criminal Procedure Law No. 5271;
  • Not deleting the data when necessary;
  • Not deleting the data as per the provisions of the Turkish Criminal Procedural Law No. 5271;
  • Impairing or preventing the due functioning of an IT system;
  • Corrupting, destructing, amending data in an IT system or making the same inaccessible, placing data on an IT system, sending existing data to other mediums; and
  • Where the actions in the preceding paragraph have been taken with respect to the IT systems of a bank, credit institution, or a public authority.

In addition to the data controller facing the monetary penalties indicated in our responses above, individual company directors and representatives can face criminal liability, and imprisonment sanction varies between six months to eight years.

Others: 

According to article 14 of the DPL, data subjects are entitled to claim to the courts for compensation for material or non-material damage in the event of a data breach. 

5. Registration / notification / authorisation

Unless they benefit from an exemption as outlined under the DPL and the secondary legislation, all data controllers (foreign or residing in Turkey) engaged in data processing in Turkey are obliged to sign up to the Registry.

6. Main obligations and processing requirements

The DPL requires data controllers to either obtain the explicit consent of the data subject for data processing or rely on one of the legal bases below:

  • Such processing is explicitly allowed under the relevant legislation;
  • Such processing is necessary to protect the vital interests or the bodily integrity of the data subject or of any other person who is physically or legally incapable of giving explicit consent;
  • It is necessary to process the personal data of persons party to a contract where such processing is necessary to enter into the said contract or fulfil its terms;
  • The processing of the personal data is necessary for the data controller to fulfil a legal obligation;
  • The personal data has been made public by the data subject;
  • The processing of the personal data is necessary to establish, use or preserve a right; or
  • The processing of the personal data is necessary for the legitimate interests of the data controller on the condition that such processing does not infringe upon the fundamental rights and freedoms of the data subject.

Besides, personal data, in general, may only be processed in accordance with the relevant procedures and principles set out under the DPL and the relevant pieces of legislation. 

Further distinctions with respect to the procedures and principles applicable to the processing of sensitive personal data (özel nitelikli kişisel veri) are also applicable under the DPL.

Penalties for breaches of the DPL

See our responses to “Sanctions & non-compliance” above.

7. Data subject rights

The data subject must be granted the following rights:

  • The right to learn whether his/her personal data has been processed and if so, demand information about such processing/transfer;
  • The right to learn the purpose of such data processing and whether the use of his/her personal data is in line with the intended purpose of processing/transfer;
  • The right to learn about the third parties to whom the data subject’s personal data has been transferred (in Turkey or abroad);
  • The right to demand correction in the event that the personal data has been processed in a deficient or wrongful manner;
  • The right to demand deletion, disposal, or anonymisation of the personal data in accordance with the provisions of the DPL or if the grounds for the processing of the personal data are no longer applicable, notify the third parties to whom the data subject’s personal data was transferred about the said correction, deletion, disposal, and anonymisation procedures;
  • The right to object to the results if the personal data has been analysed by automated systems and this has produced results that are unfavourable for the data subject; and 
  • The right to demand compensation if the processing of the personal data in violation of the DPL has resulted in damages for the data subject.

8. Processing by third parties

Under the DPL, a data processor (veri işleyen) is considered as the natural or legal person who processes personal data on behalf of the data controller upon the authorisation of such data controller.

Where this third party is to receive the personal data to be processed from the actual data controller, the rules regarding the domestic transfer of personal data would become applicable. Accordingly, a data controller would be able to transfer such personal data to a data processor if: 

  • Explicit consent is obtained from the data subject;  
  • This data transfer is explicitly allowed under the relevant legislation;
  • The data transfer is necessary to protect the vital interests or the bodily integrity of the data subject or of another person and the data subject is physically or legally incapable of giving his/her consent;
  • The transfer of the personal data of the parties of a contract is necessary, on the condition that the processing is directly related to the execution or performance of such contract;
  • The data transfer is mandatory for the data controller to fulfil its obligations;
  • The data to be transferred has been made public by the data subject;
  • The transfer is necessary for the establishment, exercise, or defence of a legal claim; or
  • The data transfer is necessary for the legitimate interests of the data controller on the condition that such processing does not infringe upon the fundamental rights and freedoms of the person in question. 

Please note that the DPL indicates that special categories of personal data, except for those relating to the sexual life and the personal health of the data subject may be transferred based on explicit consent or if such processing is allowed under the relevant pieces of Turkish legislation and the necessary precautions have been taken for the protection of the data in question.

Whereas any personal data relating to the sexual life and the personal health of an individual may only be transferred based on explicit consent or, on the condition that the necessary precautions have been taken for the protection of the data in question and the data is transferred by and for the purposes of:

  • Persons who are bound by the confidentiality obligation for the purposes of protecting public health, preventive medicine, medical diagnosis, planning, managing, and financing of treatment and medical care services; or
  • Authorised entities and institutions that hold the purposes indicated in the preceding paragraph.

9. Transfers out of country

In principle, the DPL requires either the explicit consent of the data subject for the transfer of his/her personal data to foreign jurisdictions or relying on another legal basis for such transfer.

In the latter (ie where the transfer is based on a legal basis other than consent), personal data may be sent to a foreign jurisdiction only if:

  • There is sufficient protection of personal data in that jurisdiction. The Board decides and announces which countries have sufficient protection, or
  • If the related jurisdiction does not provide sufficient protection, the authorisation of the Board is required upon written assurances (in the form of model clauses of or Binding Corporate Rules, where multiple group companies are in question) by the data controllers both in Turkey and in the foreign country where personal data is transferred.

10. Data Protection Officer

The Data Protection Officer concept is not recognised under the DPL. 

However, all data controllers that are obliged to register with VERBIS must appoint either a “data controller’s representative” and a contact person if they are resident in a foreign jurisdiction or only a “contact person”, if they are resident in Turkey.

In each case, the related individual should have no liability for the data controllers’ failure to comply with its statutory obligations, but merely acts as an intermediary between the data controller and the DPA.

11. Security

A specific list of technical and administrative measures to be implemented is not available under the Turkish data protection legislation. 

However, the Board has made one decision whereby it obliges any entities/persons processing special categories of personal data to take additional protective measures for the protection of any sensitive personal data processed by them (decision dated 31 January 2018 numbered 2018/10).

12. Breach notification

Under the DPL, the data controllers are required to notify the DPA within 72 hours of becoming aware of a breach. Where the data controller fails to inform the DPA accordingly, it must also inform the DPA of the causes in the delay of its notification.

Further, the data controller must also notify the data subjects who have been affected by the said breach. 

13. Direct marketing

B2C direct marketing is regulated under the Turkish Law on the Regulation E-Commerce No. 6563, which prohibits unsolicited electronic communications for direct marketing purposes without prior consent from the data subjects, unless:

  • The data subject has provided his/her contact information to the service provider to receive the electronic communications related to the change, use, and maintenance of the goods or services already obtained.
  • Electronic communication does not promote new goods or services; and it solely relates to the collection of a debt, the information update, or similar actions concerning an ongoing subscription, membership, or partnership.
  • The electronic communication solely contains information on intermediary activities of the message sender regulated by the capital market legislation. 

Please also note that although this matter is not specifically regulated under the DPL, as use of personal data for marketing would be considered as data processing, such marketing activity would also be subject to the general principles of the DPL as indicated above.

14. Cookies and adtech

Cookies are subjected to the general principles of the DPL as indicated above.

15. Risk scale

Severe.

Cybersecurity

1. Local cybersecurity laws and scope

The decisive applicable laws and regulations related to cybersecurity matters are the following:

Please also note that other pieces of legislation related to cybersecurity, usually enacted on a sector-specific basis, are also in effect but have not specifically been mentioned as these are not of a general nature but concern specific sectors (eg banking, e-commerce).

2. Anticipated changes to local laws

Amendments to the cybersecurity legislation of Turkey and related changes are expected to be enacted based on the National Cyber Security Strategic Action Plans, which have been published by the Ministry of Transportation and Infrastructure (“Ministry”) since 2013 and each of which have covered a period of several years. 

The latest Strategic Action Plan was published in 2020 for the period of 2020-2023. Strategic objectives were the protection of critical infrastructure and increasing their resilience, enhancement of national capacity, the development of an organic cybersecurity network, ensuring the security of new generation technology, fighting against cybercrimes, the development of national technology, the integration of cybersecurity into national security and improving international cooperation. As such, the aim is to reduce and deter cybercrime, apply general international standards of information security in public and private sectors, and establish a national certification mechanism. 

Since the 2017 announcement by the Minister of Transportation, Maritime Affairs and Communication that a draft for the Cyber Security Law had been prepared, no further developments have been publicly communicated. 

3. Application 

Law No. 5809

The Law No. 5809, implemented in Turkey on 5 November 2008, applies to the provision of electronic communication services, the operation of communication infrastructure and networks, the production, import, sale, establishment of electronic communication equipment and systems of any kind and regulation, inspection, and the authorisation of these aspects.
 
To this effect, the Law No. 5809 regulates the duties and authorities of the Ministry, Information and Communication Technologies Authority (“Authority”) and finally the Cyber Security Council (“Council”) alongside the rights and obligations of operators and consumers. 

Law No. 5651

Law No. 5651 regulates the obligations and the liabilities of the content providers, access providers and collective usage providers and the procedure and principles regarding fighting against certain crimes committed via the use of services provided by content providers, access providers and hosting services providers. It also grants powers to the Authority regarding detection and prevention of cyberattacks, ensuring coordination between content providers, access providers and hosting service providers regarding this matter and for taking the necessary measures in this respect.

Law No. 5237

Turkish Criminal Code No. 5237 is the key piece of legislation setting out all criminal law related matters in Turkey and has a specific section on cybersecurity. This section regulates and defines crimes such as the penetration into an information system, hampering and breaking an information system, destroying, or changing data within such systems, as well as the related penalties applicable to such crimes. 

Decree No. 2012/3841

Decree No. 2012/3841 determines the duties of the Council, specifically determining the measures related to cybersecurity matters and approving the related plans, programmes, reports, procedures, principles, and standards. The related duties of the Ministry are also determined with Decree No. 2012/3841, which include preparing, executing, and managing national cybersecurity policies, strategies, and action plans. 

The Regulation

This Regulation regulates the procedure and principles that must be complied by operators to ensure the security of network and information. The Regulation has been enacted based on the Law No. 5809

4. Authority

5. Key obligations 

Obligations Arising from Law No. 5809 and Related Regulation

  • The Ministry must determine national cybersecurity policies, strategies, aims, procedures, and principles to ensure cybersecurity for real and legal persons, prepare action plans and facilitate the coordination of related operations.
  • The Authority must take every necessary measure to protect public institutions, real and legal persons against cyberattacks and ensure deterrence of any such attacks. 
  • The Council must take any necessary decisions for the nationwide application of policies, strategies, and action plans regarding cybersecurity, resolve proposals on determining critical infrastructure and determine institutions and organisations that are exempted from cybersecurity regulations.

The duties of the operators mentioned under the Law No. 5809 have been outlined under a separate piece of legislation, namely, the Regulation, indicated above, which has been enacted based on the Law No. 5809.

According to the Regulation, the operators are obliged, among others to: 

  • establish a “Cyber Incidents Intervention Team” within themselves; 
  • set up protection mechanisms on their IP addresses, communication ports and application protocols such as user verification or access control;
  • provide protection services against cyberattacks upon request;
  • take all necessary measures against cyberattacks such as DoS/DDoS attacks, propagation of malicious software;
  • if the resource of the cyberattack informed by the Computer Emergency Response Team is one of the users of the operator, notify the related user and suspend the electronic communication service if requested by that user; and
  • if the resource of the cyberattack informed by the Computer Emergency Response Team is one of the users of another operator, ensure that the related operator is notified.   

Obligations Arising from Law No. 5651:

  • The Authority must facilitate the coordination between content providers, hosting service providers, access providers and other related institutions and organisations regarding the determining and preventing of cyberattacks, execute the operations for taking the necessary measures and conduct necessary studies. 
  • Collective usage providers are obliged to take the necessary measures to fight against crimes and detect criminals within procedures and principles as determined under the applicable legislation. 

Obligations Arising from Decree No. 2012/3841:

  • Please see above the obligations arising from Law No. 5809.

6. Sanctions & non-compliance 

Administrative sanctions:

Law No. 5809

The Authority is authorised to inspect and monitor the compliance of operators and consequently has the right to impose, among others, the following sanctions:

  • an administrative fine of up 3% of the operator’s net sales of the previous calendar year;
  • the suspension of the operator’s authorisation, in the case of gross negligence;
  • if the operator initiated its operations recently, an administrative fine from TRY 1,000 to TRY 1m, or other sanctions specified within the Law considering the circumstances applicable;
  • the suspension of the operator’s operations temporarily or imposition of other tangible measures in the occurrence of cases as specified in the applicable regulations in effect prior to the incident.

Law No. 5651

As mentioned in our responses to “Key Obligations” above, collective usage providers must take the necessary measures to fight against crimes and detect the individual engaged in such criminal activity. Commercial collective access providers who violate this liability shall receive a warning, an administrative monetary fine and/or the suspension of their business operations for up to three days. 

Criminal sanctions:

Law No. 5237

Various penalties for cybercrimes have been determined under the Law No. 5237. These are as follows:

Any person who unlawfully accesses, partially or fully, a data processing system, or remains within such system, shall be subject to a penalty of imprisonment for a term of up to one year or a judicial monetary fine.

Where the act defined in the paragraph above is committed in relation to a system that is only accessible upon the payment of a fee, the penalty shall be decreased by up to a half.

Where any data within any such system is deleted or altered because of this act, the penalty to be imposed shall be a term of imprisonment of six months to two years.

Any person who prevents the functioning of a data processing system or renders such system useless shall be subject to a penalty of imprisonment for a term of one to five years.

Any person who deletes, alters, corrupts, or bars access to data, or introduces data into a system or sends existing data to another medium shall be subject to a penalty of imprisonment for a term of six months to three years.

Where this offence is committed in relation to a data processing system of a public institution or establishment, bank, or institution of credit, then the penalty to be imposed shall be increased by a half.

Where a person obtains an unjust benefit for himself or another by committing the acts defined in the aforementioned paragraphs, and such acts do not constitute a separate offence, this person shall be subject to a penalty of imprisonment from two years to six years and a judicial fine of up to 5,000 days.

Any person who produces, imports, transfers, stores, accepts, sells, supplies for sale, purchases, gives to another person, or holds an equipment, computer program, password or other security code which was produced or created for committing abovementioned crimes or other crimes that could be committed by using information systems shall be subject to imprisonment of one to three years and judicial fine of up to 5,000 days. 

Others: 

N/A

7. Is there a national computer emergency response team (CERT) or computer security incident response team (CSIRT)? 

Yes, the Computer Emergency Response Team (National Centre for Intervention to Cyber Incidents - USOM) (the “Team”) was founded within the Authority to detect the threats within the cyberspace, develop measures to prevent and minimise the effects of potential cyberattacks and share information with relevant actors when necessary. The Team also evaluates the cyberattack notifications and facilitates the coordination between relevant public and private organisations. 

Additionally, once again within the Authority, the Intervention Team for Sectoral Cyber Incidents and the Intervention Team for Institutional Cyber Incidents have been established under the abovementioned Team. 

  • The Intervention Team for Sectoral Cyber Incidents ensures that measures aimed at, among others, cyberattacks, DoS/DDoS attacks and sprawling of malicious software are taken against the energy, banking and finance, transportation, critical public services, water management and electronic communications sectors. In accordance with these sectors and matters, in cases that fall within the responsibility of the Intervention Team to Sectoral Cyber Incidents, it is reported to and handled under the coordination of the Team. 
  • The Intervention Team for Institutional Cyber Incidents operate likewise the Intervention Team for Sectoral Cyber Incidents, but for matters that are connected to ministries, separate public institutions and other public institutions holding information systems. 

8. National cybersecurity incident management structure

Please see above our responses to “Is there a national computer emergency response team (CERT) or computer security incident response team (CSIRT)?”

9. Other cybersecurity initiatives 

The Cybersecurity Initiative was established under the Board of Internet Development, an organ within the Authority. The aim of the Cybersecurity Initiative is to conduct studies and present new ideas regarding the cybersecurity matters to the Ministry by working with sectoral stakeholders, facilitating exchange of ideas and coordination among relevant institutions, and revealing new common ideas. 

Portrait of Döne Yalçın
Dr. Döne Yalçın
Managing Partner
Portrait of Sinan Abra
Sinan Abra
Counsel
Istanbul
Iremgül Mansur