Memo Regarding Regulation on Data Controller Registry

Preamble

The draft Regulation on Data Controller Registry (“Regulation”) was published in the website of the Personal Data Protection Agency (“Agency”) to receive the stakeholders’ opinion. As per the announcement the stakeholders may submit their reviews and comments until 20.05.2017.

As per the Law on Protection of Personal Data (“Law”) numbered 6998, the data controllers are required to register to the Data Controller Registry (“Registry”) prior to commencing processing personal data within the period determined and announced by the Board of the Agency (“Agency”). Within this scope, the Regulation which sets out the procedures and principles for registration and the related obligations of data controllers is essential for legal and natural persons that are processing data. It must be noted that the Board may impose an administrative fine between 20.000 TL and 1.000.000 TL if the registration and notification requirements are not complied with.

The Regulation which was prepared pursuant to the Article 16 and Article 22 of the Law sets out matters such as establishment and management of the Registry and its monitoring and access to it; commencement of the registration obligation, application procedure, renewal and deletion together with exemptions from the registration obligation.

Some aspects of the Regulation such as determining the maximum period, establishing the Policy on Retaining and Disposing Personal Data, determination of data controller and data controller representative together with contact person and their authorization will require a detailed and thorough preparation and working process for natural and legal persons processing data.

  1. Data Controller Registry

The Registry shall be kept public and the Board has the authority to determine the scope of publicness and exemptions.

The Registry shall be established by the Presidency of the Agency and it shall take the necessary measures for establishment, management, safeguarding the Registry and keeping it up-to-date.

As per Article 7 of the Regulation which sets out access to the Registry, the following which are within the Registry will be disclosed to the public:

  1. The name and address of data controller and its representative,
  2. The purposes of processing personal data,
  3. Group and groups of persons whom are data subjects together with data categories of these persons,
  4. Recipient or recipient groups that personal data may be transferred to,
  5. Personal data which are expected to be transferred to foreign countries,
  6. Date of registration to the Registry and date of expiration for validity of registration.
  1. Data Controller and Registration Obligation

Data controller is a natural or legal person who determines the purposes and means of processing personal data, whom is responsible for establishment and management of data recording system. As per the Article 8 on commencement of registration obligation, the data controllers are required to register to the Registry prior to commencement of processing personal data. For data controllers that are not residing in Turkey, registration is required to be made via data controller representative prior to commencement of processing personal data.

Data controllers under registration obligation may request an additional time from the Agency by declaring its reason and making an application as per the procedure prescribed by the Regulation. The Agency may give an additional time for once only.

  1. Legal Person Data Controllers

As per Article 11 of the Regulation, the data controller is the legal entity itself for legal persons. For legal persons residing in Turkey, the obligations of the data controller under the Law shall be fulfilled by the body which is authorised to represent and bind the legal person as per the relevant legislation or the person or persons prescribed by the related law.

The body which is authorised to represent the legal person may appoint one or more persons in relation to the obligations that will be fulfilled for application of the Law. However, this appointment shall not relieve the relevant body from its liability under the Law.

The authorised body of the legal person may not delegate its responsibilities arising from the application of the Law to one or more persons from within or outside the legal entity. This provision conflicts with the Turkish Commercial Code when it is assessed together with the provisions of the Code related to management and representation.

  1. Contact Person

The information of contact person will be provided during the registration to the Registry for legal persons residing in Turkey. The contact person as a communication party is responsible for ensuring that requests of related persons are answered swiftly and efficiently by the data controllers. Nevertheless, the contact person is not authorised to represent the data controller as per the provisions of the Regulation and the Law.

  1. Application for Registration

The information that will be submitted as part of the registration obligation are set out within the Article 9 of the Regulation. Accordingly, the following will be submitted within the application:

  1. The information within the application form that will be determined by the Board within the scope of the identity and address of data controller and its representative,
  2. The purposes of processing personal data,
  3. Statements regarding group or groups of persons whom are data subjects and data categories belonging to these persons, recipient or recipient groups that personal data may be transferred to,
  4. Personal data which are estimated to be transferred to foreign countries,
  5. Measures related to data safety as prescribed by the Article 12 of the Law, which are taken as per the principles determined by the Board,
  6. Maximum period which is required for processing personal data.

The information that will be disclosed to the Registry by data controllers as per subclauses (b), (c), (d) and (e) will be transferred to the Registry via VERBIS based on the Personal Data Processing Inventory by using headings under VERBIS.

Personal Data Processing Inventory is defined as an inventory established by data controllers through associating their personal data processing activities that are performed based on their business processes with purposes of processing personal data, data category[1], transferred recipient group[2] and group of persons[3] of data subject.

The data controllers will be deemed to have fulfilled their registration obligation by installing the necessary information to data registration information system (“VERBIS”). VERBIS is an IT system which is established by the Presidency of the Agency and can be accessed online and that will be used by the data controllers for Registry applications and other procedures related to the Registry.

  1. Data Controller Representativ

As stated above, for data controllers not residing in Turkey, registration to the Registry is required to be made through data controller representative. The data controller representative is defined as a legal person residing in Turkey or a Turkish citizen natural person, whom will be authorised to represent the data controllers not residing in Turkey in matters set out under the second subparagraph of the Article 11 of the Regulation.

The representative’s authority of representation shall include the following described below and be limited to the extent of the matters expressed within the decision on authority of representation:

  1. To receive and accept notifications and correspondence sent by the Agency or the Board on behalf of the data controller,
  2. To respond to the Agency’s or Board’s questions on behalf of the data controller,
  3. Unless the Board declares otherwise, within the scope of the obligation to inform to receive the applications that are directed to the data controller and to transfer these to the data controller,
  4. To conduct the proceedings and procedures related to the Registry on behalf of the data controller,
  5. Unless the Board declares otherwise, to submit the data controller’s replies to the related persons within the scope of the applications.

Therefore, as it is seen, the data controller representative is responsible for maintaining and managing communication between the data controller and the Agency or the Board.

If the data controller representative is designated as a legal person residing in Turkey, a contact person is also required to be designated for performing registration and other procedures.

  1. Obligations of the Data Controller

The data controller is responsible for correctness, topicality and lawfulness of the information submitted to and disclosed by the Registry. Registration does not relive the data controller from its other obligations under the Law.

  1. Maximum Time and Policy on Retaining and Disposing Personal Data

One of the most important aspects of the Regulation is the maximum time which shall be determined by the data controllers.

The personal data are required to be deleted, disposed or anonymized ex officio or upon the request of the related person by the data controller if the purposes of processing are no longer existing despite duly processing personal data in accordance with the provisions of the Law and other related legislation. Within this scope, maximum time which will be determined by the data controllers shall form a basis for fulfilling these obligations.

The information on maximum time which is required to be submitted within the application for registration, shall be submitted by matching these with data categories. As per Article 9 of the Regulation the following shall be taken in consideration whilst determining the maximum time:

  1. In respect of the related data category the customary time which is required for processing for the sector of the data controller,
  2. The time that the legal relationship established with the related person will continue for which requires processing personal data within the related data category,
  3. The time that the legitimate interest which will be achieved by the data controller will be valid for as per the rule of law and good faith depending on the purpose of processing of related data category,
  4. Depending on the purpose processing of related data category, the legal period that the risks, costs and obligations will continue for which will be caused by retention of data,
  5. Whether the determined maximum time is suitable for keeping the related data category correct and up-to-date,
  6. The time required for retention of personal data under the related data category as per the legal obligations of the data controller,
  7. The period of limitation for the data controller to exercise a right with respect to personal data under the related data category.

On the other hand, the data controllers shall prepare a Policy on Retaining and Disposing Personal Data for determining the maximum time required for purpose of processing personal data, monitoring the compliance of these time periods with the information under the Personal Data Processing Inventory and whether the maximum time has been exceeded or not and shall ensure application of such policy.

  1. Exemptions and Exemption Criteria Determined by the Board

As per the Article 16 of the Regulation, with regards to the following personal data processing activities the data controllers do not have a registration or notification obligation for these activities :

  1. Processing personal data being necessary for prevention of crime or conducting criminal inquiry.
  2. Processing personal data which was anonymised by the relevant person.
  3. Processing personal data being necessary to enforce supervision and regulation duties together with disciplinary investigation and proceedings for the authorised public institutions and organizations together with professional organizations with public institution status,
  4. Processing personal data being necessary for protection of State’s economic and fiscal interests in relation to budget, tax and fiscal matters.

The exemption criteria that shall be determined by the Board are set out under the Article 17 of the Regulation. Accordingly, the Board may grant an exemption from registration obligation within the scope of the following criteria:

  1. Nature of personal data,
  2. Number of personal data,
  3. Purpose of processing personal data,
  4. Area of operation in which the personal data is processed,
  5. Status of transferring personal data to third parties,
  6. Processing personal data as per clauses (a)[4] and (ç)[5] of second subparagraph of Article 5 and third subparagraph[6] of Article 6 of the Law,
  7. Duration of storing personal data,
  8. Annual turnover of the data controller,
  9. Number of employees employed by the data controller.

Upon assessment of the articles above, it is seen that exemption criteria are defined in general under the Regulation. Within this scope, the Board’s decisions must be waited for the implementation of the Law as the Regulation sets out that the Board has the power to decide to determine the scope of exemptions, principals of application, calculation methods and procedures.

Conclusion

Upon assessment of the Regulation with respect to data controllers it can be emphasized that a detailed and thorough preparation is required for determination of maximum time and Policy on Retaining and Disposing Personal Data and gathering the necessary information for registration application especially.

An extensive work is necessary for matters such as the sector in which the data controller is operating, legal relationship which requires processing personal data, duration of retention of personal data for legal obligations of data controller which should be taken into consideration for determining maximum time. Therefore, accurately defining the business procedures, sector, purpose of processing personal data and processing activities, data categories which are processed, group of persons of data subjects are essential for legal and real persons processing personal data.

We provide legal assistance to our clients within the scope of procedures of compliance to the Law on Protection of Personal Data numbered 6698. In this context, our services include preparing the necessary documents for notifications under the Law; reviewing and revising the contracts executed with employees, customers and third parties with respect to compliance; preparing the necessary information for registration to the registry and monitoring the registration application and establishing, reviewing and revising the internal documentation and policies that are necessary for adhering to the law. You may contact us from info@engblaw.com for detailed information and questions about the legislation.

[1] Data Category: It is defined as a class of personal data belonging to a group or groups of persons of data subjects that are grouped according to common characteristics of personal data.

[2] Recipient Group: It is defined as the category of person to whom the personal data is transferred to by the data controller.

[3]Group of persons of data subject: It is defined as the category of related person whose personal data is processed by the data controller.

[4] If it is necessary to process personal data of the related parties of a contract, provided that it is directly related to the establishment or performance of a contract.

[5] If it is required for a data controller to fulfil its legal obligations.

[6] The data related to health and sexual life can only be processed without an explicit consent by persons under the obligation of confidentiality or authorised institutions and establishments for the purposes of protecting public health, preventive medicine, diagnosis, performing services of treatment and care, health services and financial planning and management.