Law on Protection of Personal Data numbered 6698 provides under the article titled “Data Security Liabilities” that, data controllers must take all necessary technical and administrative 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 through unlawful means, the data controller is obliged to inform the relevant persons that are affected by the breach and the 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 by the data controller.
Regarding how the obligation to inform ”as soon as possible” will be implemented, the Board takes into account the detailed regulations regarding data breach notifications provided in the European General Data Protection Regulation (GDPR), which abolishes the EU Directive No. 95/46/EC, which is the source of the Law. In order to avoid any inconsistency between the decisions to be taken by the Board on such a matter and to provide a standardization in practice; Board has stated in its decision dated 24.01.2019 and numbered 2019/10 that the rules 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 the contact address of the person can be reached, such persons will be informed directly, and if not, the notification will 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 for the 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 the Board.
An administrative fine of up to 1 million TL is imposed by the Law in case of non-fulfillment of such notification obligation, independent from the assessment whether there is a breach of data security obligations in cause of the breach etc. Unlike the source regulation, Turkish Data Protection Law regulates the notification of each and every data breach. It is therefore expected that the data controller will report any and all events without having to assess whether the affected person will be exposed to risks of the breach. However, this procedure seems to be contrary to the normal flow of life considering that even sending an e-mail to the wrong address is considered as a data breach, but not all cases are considered to be subject to notification when it causes no risks to the data subject.
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 been reported, and the risks attached to the breach of data security, number of persons affected by the breach, but the Board 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 breach notification from the data controller and it has also issued fines for not taking the sufficient measures to protect data. 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 technical and administrative measures to ensure data security.
In the event of any data breach, the expansion of the effects of the breach, especially in global companies, may not be determined easily as the process, research and technical analysis may take a long time. This may also lead data controllers to be exposed to fines for late notification of the breach incident, but the important thing is to explain how the process is carried out in a transparent manner in the notification form to the Authority, to explain the actions taken and to cooperate with the Board. There is no doubt that the Board will take all these conditions into account when making a decision, even if there is such a late notification. On the other hand, close communication with the Board can also be effective in determining whether the Board publishes the breach directly on its website and make it public or not. Undoubtedly, each data breach notification may be always subject to a separate administrative fine as well for not taking the necessary administrative and technical measures, as well as the sanction of administrative fine for late data breach incident notification.
Last, it is seen from the summary decisions published by the Board that the Board generally concludes that the data controller has not taken sufficient technical and administrative measures to ensure the data security, and that it is essentially decided without going through a specific technical review. In particular, even the way of being aware of the data breach incident gives the Board a perspective to reach a conclusion on the matter and conclude whether sufficient measures are taken or not. However, the law imposes an obligation on the data controller to take all necessary technical and administrative measures to prevent unauthorized access to personal data and to maintain the appropriate level of security in order to protect personal data and in parallel, the Board must examine separately whether these measures have been taken or not in each violation. It is seen that the Board has broadly interpreted the obligation to take all the necessary technical and administrative measures to ensure the appropriate level of security. Turkish DPA’s approach to data breach cases indicates that the liability of the data controller for data security is at the highest level and thus must be diligently observed.