Business Starters’ Legal Kit Part 9: Data Protection: Ensuring Compliance with the Turkish Personal Data Protection Law

Att. Abdulkadir Argıllı

In today’s data-driven world, companies collect and process vast amounts of personal data to operate effectively. Protecting this data and adhering to data privacy regulations are crucial for building trust with customers, employees, and partners.

The Turkish Personal Data Protection Law No. 6698 (KVKK) sets out stringent requirements for the collection, processing, and storage of personal data. Compliance with these regulations is not only a legal obligation but also a crucial aspect of building trust with all kinds of contacts. This article explores how companies can ensure compliance with the KVKK, protect employees’ personal data, incorporate data protection rules into commercial contracts, understand the sanctions for violations, and implement basic tips for data protection.

1. How Do Companies Comply with Personal Data Protection Regulations?

1.1. Understanding KVKK Requirements

The first step towards compliance is understanding the key provisions of the KVKK:

• Data Processing Principles: Companies must process personal data lawfully, fairly, and transparently. Data should be collected for specified, explicit, and legitimate purposes and not further processed in a manner incompatible with those purposes.
• Data Subject Rights: Individuals have rights regarding their personal data, including the right to access, rectify, erase, and object to the processing of their data.
• Data Security: Companies must implement appropriate technical and organizational measures to protect personal data against unauthorized access, loss, destruction, or alteration.

1.2. Appointing a Data Protection Officer

Appointing a Data Protection Officer (DPO) is crucial for ensuring ongoing compliance. The DPO is responsible for several key issues. The DPO monitors personal data compliance, ensures that data protection policies and procedures are followed. He/she advises data protection impact assessments. Accordingly, helps the company assess and mitigate data protection risks. Liaises with the Data Protection Authority, acts as the point of contact with regulatory authorities and data subjects.

1.3. Conducting Data Protection Impact Assessments

Data Protection Impact Assessments (DPIAs) help identify and mitigate risks associated with data processing activities. DPIAs should be conducted for high-risk processing activities, such as processing large volumes of sensitive data or implementing new technologies that impact privacy.

1.4. Developing Data Protection Policies

Comprehensive data protection policies should outline the company’s approach to data protection, including:

• Data Collection: Procedures for collecting and obtaining consent from data subjects.
• Data Processing: Guidelines for lawful and secure processing of personal data.
• Data Retention and Disposal: Policies for retaining personal data only as long as necessary and securely disposing of it when no longer needed.
• Incident Response: Protocols for responding to data breaches and notifying affected individuals and authorities.

2. What to Do About Employees’ Personal Data Protection?

2.1. Collecting and Processing Employee Data

Employers must handle employees’ personal data with the same care as customer data. Within this framework, some basic tips for employers in terms of protecting employees’ personal data:

• Legal Basis: Ensure there is a lawful basis for processing employee data, such as fulfilling a contract, complying with legal obligations, or obtaining consent.
• Informative Employment Contracts: Clearly outline personal data collection practices, storage purposes, and retention periods within employment contracts.
• Transparency and Consent: Inform employees about what data is collected, how it is used, and their rights regarding their data. Obtain explicit consent from employees for processing sensitive personal data beyond what is necessary for employment obligations (e.g., biometric data for access control).
• Purpose Limitation: Only collect data necessary for employment purposes, such as payroll processing, benefits administration, and performance management. Employers should avoid unnecessary data gathering.
• Data Security Measures for Employee Data: Employees have the same data subject rights as other individuals under the KVKK. Establish procedures to address their requests regarding access, rectification, and erasure of their personal data. Implement appropriate security measures to protect sensitive employee information, such as payroll data and health insurance details.

2.2. Safeguarding Employee Data

The employer shall implement robust security measures to protect employee data. Accordingly an employer shall:

• Restrict access to personal data to authorized personnel only.
• Use encryption to protect data in transit and at rest.
• Conduct regular audits to ensure compliance with data protection policies and identify vulnerabilities.

2.3. Handling Sensitive Data

Special care is required when handling sensitive employee data, such as health information or biometric data. Ensure that processing such data complies with additional safeguards and legal requirements.

3. What Rules to Add to Commercial Contracts in Terms of Data Protection?

3.1. Data Processing Agreements

Include Data Processing Agreements (DPAs) in contracts with third-party service providers who process personal data on behalf of the company. DPAs should specify:

• Processing Instructions: Clearly define the scope, nature, and purpose of the data processing activities.
• Security Measures: Outline the security measures that the processor must implement.
• Sub-Processing: Require the processor to obtain consent before engaging sub-processors and ensure they comply with the same data protection obligations.
• Data Subject Rights: Ensure the processor assists the company in fulfilling data subject rights requests.
• Transferring Data Outside Turkiye: If personal data is transferred outside Turkiye, ensure adequate safeguards are in place to comply with KVKK requirements for international data transfers.

3.2. Confidentiality Clauses

Include confidentiality clauses to ensure that third parties maintain the confidentiality of personal data and do not disclose it without authorization.

3.3. Liability and Indemnity Provisions

Define liability and indemnity provisions to allocate responsibility for data protection breaches and associated costs.

4. Sanctions for Violations of Personal Data Protection Regulations

4.1. Administrative Fines

Violations of the KVKK can result in significant administrative fines. The amount of the fine depends on the nature and severity of the violation. Companies can be fined for:

• Failure to Implement Adequate Security Measures: Fines for not protecting personal data appropriately.
• Non-Compliance with Data Subject Rights: Fines for not responding to data subject requests or violating their rights.
• Unlawful Data Processing: Fines for processing data without a lawful basis or not adhering to the principles of data processing.

4.2. Criminal Penalties

In addition to administrative fines, certain violations of the KVKK may result in criminal penalties, including imprisonment for responsible individuals.

4.3. Reputational Damage

Beyond legal and financial repercussions, data breaches and non-compliance can severely damage a company’s reputation, leading to loss of customer trust and business opportunities.

5. Data Breach Notification

In the event of a data breach, notify the Turkish Data Protection Authority (KVKK) and affected data subjects promptly. The notification should outline the nature of the breach, potential risks to individuals, and measures taken to mitigate the issue.

6. Regulatory Authority: Turkish Data Protection Authority

The Turkish Data Protection Authority (KVKK) is the principal regulatory body enforcing data protection laws in Turkiye. Established under the Law on the Protection of Personal Data No. 6698, the KVKK ensures compliance with data protection regulations, protecting the personal data of individuals.

6.1. Functions and Responsibilities

The KVKK’s core functions and responsibilities include:

• Supervising Compliance: Monitoring and ensuring adherence to data protection laws by data controllers and processors.
• Handling Complaints: Receiving and investigating complaints from individuals about data protection rights violations.
• Conducting Audits: Performing audits and inspections of organizations to assess compliance.
• Imposing Sanctions: Applying administrative fines and other penalties for non-compliance.
• Providing Guidance: Issuing guidelines, recommendations, and best practices for compliance.
• Raising Awareness: Engaging in activities to inform the public about data protection rights and responsibilities.

6.2. Enforcement Powers

The KVKK has several enforcement powers to ensure compliance, including:

• Investigative Powers: Conducting investigations, requesting information and documents, and performing on-site inspections.
• Corrective Measures: Ordering organizations to take specific actions to remedy non-compliance, such as suspending data processing or deleting unlawfully processed data.
• Administrative Fines: Imposing substantial fines for violations, depending on the nature and severity of the non-compliance.
• Publication of Decisions: Publicizing decisions to serve as a deterrent and raise awareness about data protection obligations.

6.3. Interaction with Data Subjects

Data subjects can lodge complaints with the KVKK if they believe their data protection rights have been violated. The authority investigates these complaints and takes appropriate action. Data subjects can also seek guidance from the KVKK regarding their rights and the procedures for exercising them.

6.4. Importance for Businesses

Businesses in Turkiye must understand and comply with the KVKK’s requirements to avoid legal and financial repercussions, including administrative fines, reputational damage, and loss of customer trust. Staying informed about the KVKK’s guidelines, regularly reviewing data protection practices, and implementing robust data protection measures are essential steps for compliance.

7. Basic Tips and Advice to Comply with Personal Data Protection Regulations

7.1. Regular Training and Awareness

Conduct regular training sessions for employees to raise awareness about data protection principles, company policies, and best practices. Ensure that employees understand their responsibilities and the importance of data protection.

7.2. Implementing Data Minimization

Adopt a data minimization approach by collecting and retaining only the personal data necessary for specific purposes. Regularly review and delete data that is no longer required.

7.3. Regular Security Assessments

Perform regular security assessments and penetration testing to identify and address vulnerabilities in data protection measures.

7.4. Establishing a Data Breach Response Plan

Develop and implement a data breach response plan to ensure prompt and effective action in the event of a data breach. The plan should include procedures for containing the breach, assessing the impact, notifying affected individuals and authorities, and preventing future incidents.

7.5. Keeping Up with Regulatory Changes

Stay informed about changes in data protection regulations and adjust policies and practices accordingly. Regularly review and update data protection policies to ensure ongoing compliance.

7.6. Include The Legal Assistance to the Protection Procedures

The issues we talk about in this article are technical issues in a legal sense. To ensure legal compliance, it is recommended to include professional support in protection processes.

8. Conclusion

Ensuring compliance with the Turkish Personal Data Protection Law (KVKK) is essential for companies operating in Turkiye. By understanding the requirements of the KVKK, appointing a Data Protection Officer, conducting Data Protection Impact Assessments, and developing comprehensive data protection policies, companies can safeguard personal data and mitigate risks. Additionally, protecting employees’ personal data, incorporating data protection rules into commercial contracts, and understanding the sanctions for violations are crucial for maintaining compliance. Implementing basic tips and advice, such as regular training, data minimization, security assessments, and a data breach response plan, can further enhance data protection efforts. By prioritizing data protection, companies can build trust with customers, employees, and partners, and ensure long-term success in the digital age.

A Reminder About Business Starters’ Legal Kit: This article is a part of “Business Starters’ Legal Kit” series. As we explained in our introductory article, the articles in this series contain essentials only. For detailed information, you can review the articles in special categories on our website or contact us.

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