Insights
Ownership of the On-Demand Works
The General Assembly of the Civil Court of Cassation (GACoC) made important determinations with its decision dated 16.01.2020 and numbered E. 2019 / 11-474, K. 2020/26, concerning the scope of the ordering party’s use of the work created within on-demand work agreements, and whether a separate contract is required for the transfer of the economic rights of the author in terms of related uses. In this case, the plaintiff was working as the purchasing manager in the defendant… »
Does Technical Function Impede Copyright?
The question of whether appearance features of utilitarian objects with technical functions can benefit from copyright protection has become a debated issue in recent years, and it has also started to find a place in the decisions of the Court of Justice of the European Union (CJEU). In the decision of the CJEU, dated June 11, 2020, and numbered C-833/18, it was evaluated how appearance features of products with technical functions can benefit from copyright protection. The… »
Data Protection Law in General
On April 7, 2016, a new law on the protection of personal data came into force in Turkey: The Law on the Protection of Personal Data numbered 6698 (“Data Protection Law”). It is the first law of its kind in Turkey, specifically regulating the protection of personal data. The Data Protection Law is a step towards harmonizing Turkish legislation with EU legislation, and it was prepared based on Directive 95/46/EC on data protection (“Data Protection Directive”). The Data… »
Application of the Data Protection Law
The Data Protection Law applies to data controllers who process and transfer personal data. In the situation where data controllers utilise the services of third-party data processors for these processes, the law holds them jointly liable for taking all of the technical and administrative measures required to ensure the safeguarding of personal data and to prevent any unlawful access or processing. The Data Protection Law does not envisage the scope of its application in… »
Lawful Data Processing
Processing Personal Data Personal data can be processed based on the below specified legal grounds: If explicit consent of the data subject is obtained; If processing is clearly proposed under the laws; If processing is mandatory for the protection of life, or to prevent the physical injury of a person, in cases where that person cannot express consent, or whose consent is legally invalid due to physical disabilities; If processing is necessary for and directly related to… »
Transfer of Personal Data to Third Party
Sensitive and non-sensitive personal data may be transferred to third parties if the data subject’s explicit consent is obtained or if one of the additional legal grounds is applicable for such transfer. The Data Protection Law does not define a third party; therefore, any individual or entity (other than the data controller and the data subject) may be considered a third party. This creates a problem, especially about transfers between data controllers and data processors… »
Transfer of Personal Data Abroad
Sensitive and non-sensitive personal data can be transferred abroad with the data subject’s explicit consent. Other legal grounds also apply to transferring personal data to a foreign country. The destination country must have “sufficient protection” to conclude the transfer abroad based on legal grounds other than explicit consent. The Board is expected to determine a list of jurisdictions that provide sufficient protection. The Board has confirmed that they have been… »
Data Breach Notification
The Data Protection Law requires data controllers to notify the relevant data subject and the Board as soon as possible when being made aware of such data breach. In its decision dated January 24, 2019 and numbered 2019/9, the Board clarified the rules and procedures to be applied in data breach incidents. The Board takes the GDPR approach in terms of timing of breach notifications, and clarified that the term of “as soon as possible” within the Data Protection Law must be… »
Data Controllers’ Registry (VERBIS)
According to Article 16 of the Data Protection Law, an obligation to register in the Data Controllers Registry has been introduced for data controllers. In 2018, the Board issued decisions granting exemptions from registration obligation to certain professional groups, associations, and political parties. The Board also granted a general exemption to local data controllers that have less than 50 employees, and actively less than TRY 25 million on their balance sheets. Data… »
Consequences of Data Breach
The Data Protection Law envisages both administrative fines and criminal liability. With regard to criminal penalties, the Data Protection Law refers to the relevant provisions of the Turkish Criminal Code that detail sanctions for the unlawful recording, or disclosing, or transferring of personal data. In addition to criminal sanctions, the Data Protection Law also contains provisions detailing administrative fines that are to be applied in the event of a breach. There are… »
Judicial Review of Board Decisions
The Data Protection Law does not include an explicit provision concerning the appeal process of Board decisions imposing administrative fines; however, it is accepted that criminal courts of peace are the authorized courts pursuant to Law No. 5326 on Misdemeanours dated 30/3/2005 since the title of Article 18 of the Data Protection Law is “Misdemeanours,” and administrative fines are issued as per Article 18 of the Data Protection Law. Having this in mind, decisions imposing… »
Planned Amendments to the Data Protection Law
Processing Sensitive Personal Data Proposed amendments to the Data Protection Law, which have been drafted by the DPA and which introduce some modifications to certain disputed provisions of the Data Protection Law, have been presented for the related institutions and organisation’s consideration. Articles proposed to be amended are Article 6, regulating the legal grounds for processing sensitive personal data and Article 9, regulation transfer of personal data abroad. Under… »