This article is correct as of 12th November 2019
The EU Regulation 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing of Directive 95/46/EC has been published on the Official Journal of the European Union on May 04, 2016.
Many companies were already in compliance with the Data Protection Rules brought by the Directive. However, the Regulation introduces new rules and regulations to the Data Protection ecosystem and it is therefore important to look into the changes of the General Data Protection Regulation (GDPR).
In the meantime, Turkey enacted The Law on Protection of Personal Data, which has entered into force as of April 07, 2016. The Law on Protection of Personal Data has been prepared mainly in line with the Directive 95/46/EC instead of the GDPR, and accordingly is being criticized for not benefiting from the tools and grants that were introduced by the GDPR.
The Main Changes Introduced by the GDPR:
a) Harmonization of the EU Countries:
The EU regulation will provide the harmonization of data protection between the EU Countries. The GDPR will be directly applied to the member states as of May 25, 2018.
The effect of this harmonization shows up in the “One stop shop” application for companies who are active in more than one member state. The companies are able to work with only one Lead Data Protection Authority if they are located in more than one member state.
Prior to this rule, data subjects were requested to work only with the Authority of the country in which they have been operating. This had caused the data subject to receive inconsistent decisions from the different Authorities on the same cases, as each Authority has its own approach and area of freedom. The harmonization is expected to prevent these kinds of inconsistent decisions in the long run.
Moreover, the GDPR introduces the European Data Protection Board in place of the Article 29 Working Party, which will be an authority of the EU and will be a legal entity.
b) Over the Borders of the EU:
Data controllers and processors who are active within the EU but not established in the Union will be subject to the GDPR as long as they process an EU resident’s personal data in connection with good/services offered to them, or monitor the behavior of individuals within the EU .
The main rationale that lies behind this idea is to strengthen EU’s position in the global digital market competition by forcing companies outside the EU to be in compliance with the GDPR. It has been explicitly stated in the Press Release of the European Commission dated 12 March 2014 that “if companies outside Europe want to take advantage of the European market with more than 500 million potential customers, then they have to play by the European rules.”
c) Requirement of Notification:
In accordance with the Directive, the data controllers were required to notify the Data Protection Authorities in certain cases. The GDPR removes the requirement of notification and replaces this requirement with procedures to be conducted by the data controller.
On the other hand, Article 36 stipulates the cases where the data controller shall consult the supervisory authority. However, the data controller is no longer required to ask for permission in case of a data transfer based on standard data protection rules or binding corporate rules.
It seems that the requirement of notification is replaced with specific obligations introduced to the data processor and data controller by the GDPR. Art. 35 on “Data protection impact assessment”, Art. 46 on “Transfers subject to appropriate safeguards” and Art. 47 on “Binding corporate rules" are examples of the new obligations of the data controller and processor.
d) Right to be forgotten:
The data subject has the right to request the erasure of his/her data without undue delay.
The controller shall erase the subject data if:
- the personal data are no longer necessary and in relation to the purpose for which they are processed,
- the data subject withdraws consent, on which the processing was based,
- the data subject objects to the processing and where the legitimate grounds of processing are not available,
- the personal data have been unlawfully processed,
- the personal data have to be erased for compliance with a legal obligation in Union or Member State law to which the controller is subject;
- the personal data have been collected in relation to the offer of information society services
The above rights of the data subjects have been granted with the aim of empowering EU citizens, particularly teenagers, to be capable of protecting their online identity. The above rights are known by the society as “the right to be forgotten” based on the “Google Spain v AEPD and Mario Costeja González” case.
It should be kept in mind that the right to be forgotten is not an absolute right. The authorities should always strike the balance between the right to be forgotten and freedom of expression and/or information.
e) The responsibilities and obligations of the Data Controller:
The data controller shall implement appropriate technical and organizational measures to ensure and be able to demonstrate that processing is performed in accordance with this Regulation.
The recital of the GDPR rules that the controller should be responsible for the carrying-out of a data protection impact assessment to evaluate, in particular, the origin, nature, particularity and severity of that risk where processing operations are likely to result in a high risk to the rights and freedoms of natural persons.
The controller should adopt internal policies and implement measures which meet in particular the principles of data protection by design and data protection by default. In the case of a personal data breach, the controller shall without undue delay and, where feasible, not later than 72 hours after having become aware of it, notify the personal data breach to the supervisory authority.
The GDPR defines the consent of the data subject in detail. Accordingly, the consent of the data subject must be freely given, specific, informed and unambiguous.
The affirmative act may be in the form of a written statement, including by electronic means, or an oral statement. The affirmative act may include ticking a box, choosing technical settings for information society services or another statement. Silence and pre-ticked boxes should not be accepted as consent.
Moreover, the consent must include all processes for which it is given and the data subject has to be sufficiently informed of the purpose of the data processing.
g) Parental consent:
The GDPR provides a specific level of protection to the personal data of children.
Article 8 of the GDPR stipulates that the processing of the personal data of a child shall be lawful where the child is at least 16 years of age. The GDPR enables countries to lower the age of children in this provision down to 13 provided that this is stipulated by the law of the member states.
Consent or authorization by the holder of parental responsibility over the child is searched where the child is under the age which is determined by the member state, i.e. 13-16.
h) International Transfers of Personal Data:
Data transfer to third countries may take place only if the conditions laid down in the GDPR are complied with by the data processor and data controller.
An international data transfer shall take place if the Commission has decided that the third country, a territory or one or more specified sectors within that third country, or the international organization in question ensures an adequate level of protection.
In the absence of a decision of the Commission, a controller or processor may transfer personal data to a third country or an international organization only if the controller or processor has provided appropriate safeguards, and on the condition that enforceable data subject rights and effective legal remedies for data subjects are available.
Moreover, a transfer of personal data should also be regarded as lawful where it is necessary to protect an interest which is essential for the data subject's or another person's vital interests, including physical integrity or life, if the data subject is incapable of giving consent.
i) Sanctions & Administrative Fines:
Data controllers who fail to fulfill their obligations will be charged to pay fines up to 10 000 000 EUR, or in the case of an undertaking, up to 2% of the total worldwide annual turnover of the preceding financial year, whichever is higher.
Infringement of the basic principles of data processing, infringement of the rights of the data subject, infringement of conditions set forth in the regulation for the transfer of data, non compliance with an administrative decision, and failure to provide access to the supervisory authority for investigation will be subject to fines up to 20 000 000 EUR, or in the case of an undertaking, up to 4 % of the total worldwide annual turnover of the preceding financial year, whichever is higher.
Turkey has newly enacted the Law on Protection of Personal Data which is, as said before, mainly in line with the principles of the Directive 95/46/EC instead of the GDPR.
Considering that the GDPR introduces a new interpretation of personal data protection especially by extending the territory of the implemented law, companies in Turkey will have to prepare both for compliance with the Turkish Law on Protection of Personal Data and with the GDPR.