Edition 66: 25 May 2018
Editorial Team:
Orçun Çetinkaya, LL.M., Ezgi Baklacı, LL.M., and Pelin Oğuzer, LL.M.
Turkey’s Data Protection Board Announces Exemptions from Registering with the Data Controller Registry

Turkey’s Data Protection Board (“Board”) has announced exemptions for certain data controllers, meaning they will not be required to register with the Data Controllers Registry (“Registry”). The exemption applies to associations, foundations, notaries, lawyers, public accountants, unions, political parties, as well as data controllers which process personal data through non-automatic means.

The Board’s Ruling number 2018/32 (“Ruling”) was published in Official Gazette number 30422 on 15 May 2018.

The Ruling states the following data controllers will not be obliged to register with the Registry for data processing activities within the scope of their fields of activity:

– Foundations.

– Associations.

– Public notaries.

– Lawyers.

– Public accountants and sworn-in public accountants.

– Unions.

– Political parties.

In addition, data controllers which process personal data through non-automatic means are also exempt from registry requirement, provided the processing is part of a data filing system.

The Board is empowered to announce exemptions for the Registry, based on objectivity criteria. The Registry is expected to become operational in the near future, after operational details were recently announced (more).

Please see this link for the full text of the Ruling (only available in Turkish).

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Turkey Announces Essential Contractual Clauses Required to Transfer Personal Data Outside Turkey

Turkey’s Data Protection Board (“Board”) has minimum contractual clauses (“Minimum Clauses”). The Minimum Clauses address the essential clauses must be included under contracts for transferring personal data to countries which Turkey deems to not provide adequate protection. The Board is expected to announce which countries it deems to provide adequate protection in the near future. The Minimum Clauses include separate provisions for transfers to data controllers, compared to data processors.

Article 9 of Personal Data Protection Law number 6698 regulates transfer of personal data abroad. In principle, personal data must not be transferred abroad without obtaining the data subject’s explicit consent. However, personal data may be transferred outside Turkey without obtaining explicit consent if one of the conditions for processing personal data without explicit consent is present and:

– If the foreign country to which personal data will be transferred has an adequate level of protection; or

– If the data controllers in Turkey and abroad commit, in writing, to provide an adequate level of protection and the Board gives permission.

Accordingly, Turkish legislation requires a written contract for transferring personal data to countries where an adequate level of protection does not exist and the Minimum Clauses include the following provisions:

– Foreign data controllers will take the technical and administrative measures required to ensure an adequate level of security, similar to Turkish data controllers.

– If the transferred personal data is not processed in line with the agreement, the data processor will be entitled to terminate the agreement.

– Foreign data controllers and data processors will notify their Turkish counterparty if any local administrative authority makes a request regarding the transferred personal data.

– Foreign data controllers will be mutually liable for the data processor’s processing activities.

– Turkish data controllers will be entitled to audit data controllers and data processors which data is transferred to.

Please see this link for the full text of the Minimum Clauses, published on the Board’s website on 16 May 2018 (only available in Turkish).

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Turkey Introduces Licenses for Internet Broadcasting

Radio and television broadcast online in Turkey must now obtain a broadcast license from the Radio and Television Supreme Council (“Council”), while platform operators must obtain a broadcast transmission permit. The Council is now authorised to supervise internet broadcasting. The Council can ask criminal courts to remove content and/or impose access bans within 24 hours and without trial if an entity does not have the necessary licenses or rights, or these permissions are revoked.

The Omnibus Law (“Omnibus Law”) was published in Official Gazette number 30373 on 27 March 2018. Among other things, the Omnibus Law amends The Law on Establishment and Broadcasting Services of Radios and Televisions number 6112 (“Law”).

Notable changes to the Law include:

– Media service providers that already had a temporary broadcasting right and/or broadcasting permit are not required to obtain an additional permit or license for internet broadcasting.

– Media service providers wishing to broadcast exclusively on the internet must still obtain a broadcasting license.

– Platform operators must obtain a broadcast transmission permit.

– The Council can ask criminal courts to remove content and/or impose access bans within 24 hours and without trial if an entity does not have the necessary licenses or rights, or these are revoked.

– The penal court can remove content and/or impose access bans for breaching an international agreement to which Turkey is a signatory or breaching the Law, even if the content or hosting provider is located outside Turkey.

– Broadcasters and platform operators located outside Turkey must still obtain broadcasting licenses and broadcast transmission permits respectively.

– Individual communications are exempt from the Law.

– Platforms not allocated for online broadcasting or entities which only provide hosting services for broadcasting services are not considered platform operators under the Law.

Further detailed rules and procedures will be released via secondary legislation within the next six months.

Please see this link for the full text of the Omnibus Law (only available in Turkish).

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Turkey Announces Details of Data Protection Authority’s Organizational Structure

Turkey has published details of the Data Protection Authority’s (“Authority”) organizational structure, department duties, powers and responsibilities, as well as the Authority’s working procedures and principles.

The Regulation on Organization of the Data Protection Authority (“Regulation”) was published in Official Gazette number 30403 on 26 March 2018.

The Regulation states that the Authority will consist of a presidency (“Presidency”), plus a nine-member board (“Board”). The Board will include the Authority’s president and the second president.

The Presidency will consist of:

– President.

– Vice-president.

– Seven departments:

– Data Management.

– Enquiry.

– Legal.

– Data Security and Information Systems.

– Guidance, Research and Corporate

– Communication.

– Human Resources and Support Services.

– Strategy Development.

The President will appoint people to carry out internal audit, enquiry and investigations. The results of these activities will be submitted to the Authority.

The President is empowered to appoint individuals and allocate them among the Presidency’s departments.

The Board is authorized to issue rules and guides for any matters which are not addressed or clarified in the Regulation.

Please see this link for the full text of the Regulation (only available in Turkish).

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United States Issues 2018 Report Regarding Intellectual Property Protection and Enforcement by its Trading Partners

The Office of the United States Trade Representative has published its 2018 Special 301 Report (“Report”) regarding intellectual property protection and enforcement by U.S. trading partners around the world. The Report identifies countries where intellectual property protection and enforcement have deteriorated, or remained at inadequate levels, as well as the countries where U.S. persons who rely on IP protection face difficulty with fair and equitable market access.

The Report states that Turkey remains on the watchlist and claims the following problems should be addressed:

– The Report claims a lack of efficiency, transparency, and fairness exist in Turkey’s pharmaceutical manufacturing inspection process, especially national pricing and reimbursement policies. It states that government authorities tend to delist pharmaceutical products from reimbursement which are not domestically produced, as a way to promote domestic pharmaceutical manufacturing.

– The Report encourages early resolution of patent disputes prior to the marketing of follow-on pharmaceuticals.

– Turkey is a major producer of counterfeit leather goods, foodstuffs, and cosmetics, as determined in the “Mapping the Real Routes of Trade in Fake Goods” published by the OECD and EU Intellectual Property Office.

– Given Turkey’s strategic position as a transit hub, the Report recommends the national police should be given ex-officio authority and other tools to help enhance enforcement, particularly in obvious infringement cases.

– The Report acknowledges a 35% increase in 2016 of customs seizures for counterfeit goods in Turkey. However, it criticizes Turkish customs officials’ lack of authority to take ex-officio action to seize and destroy counterfeit goods at the border, or to act against goods in-transit. The Report also criticizes countries like Canada, Egypt, Indonesia, Mexico, Turkmenistan, UAE, and Uzbekistan in this way.

– The Report states that sanctions for copyright infringement do not deter violations. It encourages Turkey to provide an effective mechanism to address online piracy, including full implementation of the WIPO Internet Treaties, as well as to require that collective right management organizations adhere to fair and transparent procedures.

Please see this link for the full text of the Report.

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Turkey Announces Rules for Transporting of Dangerous Goods by Air

Turkey has introduced clarified rules for transporting dangerous goods by air. These rules apply to local operators, as well as foreign operators using Turkish airspace. The rules address certification, reporting and labelling requirements for transporting such goods.

The Regulation Regarding Procedures and Principles for the Transportation of Dangerous Goods by Air (“Regulation”) was published in Official Gazette number 30390 on 13 April 2018.

Notable provisions in the Regulation include:

– Operators which want to transport dangerous goods must obtain a Dangerous Goods Transportation Authorization Certificate.

– To transport explosive materials for civilian use by air, a transport permission certificate should be given by Ministry of Interior.

– Non-Turkish operators using Turkish airspace to transfer dangerous goods must submit a certificate of authorization to carry dangerous goods to the Directorate General for Dangerous Goods and Combined Transport Regulation, issued by the competent authority in the operator’s country.

– Certain labels, signs and plates must be used when transporting dangerous goods, as defined in the technical specifications.

– The Ministry of Transport, Maritime Affairs and Communication will determine specific procedures and principles for foreign-owned enterprises in this context, including input from the Ministry of Foreign Affairs.

Violations of the Regulation can lead to administrative fines between 2,000 and 50,000 Turkish Liras. If a violation seriously threatens life, property, environment or flight safety, the fine will be increased by 100%.

Please see this link for the full text of the Regulation (only available in Turkish).

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Turkey Announces Rules for Goods Which Contain or are Processed Using Biocidal Products

Turkey has announced rules for goods which are processed with or contain biocidal products. These rules address labelling for these products, as well as other topics such as documentation, analysis, and destruction.

The Communiqué on Goods Processed with Biocidal Products (“Communique”) was published in Official Gazette number 30420 on 13 May 2018.

According to the Communiqué, supplying goods processed with biocidal products to the market is only possible if:

– The biocidal products (either used in processing, or intentionally added to the goods):

– Have the necessary permits for that specific type of good; or

– Are registered to the biocidal product inventory.

– The goods comply with restrictions regarding active materials.

The Communiqué contains detailed rules for labelling, supply and audit of goods which are processed with biocidal products. Notable provisions include:

– Processed goods must be specially packaged and labelled to prevent confusion with food or beverages.

– Labels must not contain:

– Deceptive statements regarding risks to human or animal health, nor risks to the environment.

– Statements such as:

– “Non-toxic”.

– “Harmless”.

– “Natural”.

– “Environment-friendly”.

– “Animal-friendly”.

– Labels must contain:

– The importer or exporter’s website and registered electronic e-mail.

– The goods’ usage purposes.

– A declaration that the good contains one or more biocidal products, or these were used during processing.

– The product’s biocidal effect (if it has been proven), and its permit number.

– Precautions for protecting humans, animals and the environment.

– Possible unwanted direct or indirect side effects.

– The biocidal effect’s expiry date.

– Importers or exporters must prepare a technical file for processed goods which are supplied to the market. The importer or exporter must supply the technical files and/or other information if requested by the Ministry of Health (“Ministry”) or an inspector appointed by the Ministry.

– Processed goods are inspected via laboratory analysis of samples obtained as per:

– Law Number 4703, and

– Regulation on the Procedure and Principles of Market Surveillance and Inspection by the Ministry of Health.

– Goods which have expired, are unusable, or must be destroyed for another reason, as well as waste produced during production, transport, storage or usage processes, must be eliminated according to related legislation.

– Production, export, sale, deceptive advertisements (through media, press, distribution of flyers) or any misleading publicity, which contradicts the Communiqué are forbidden.

– Violations of the Communiqué will be punishable under the:

– Law of misdemeanours number 5326.

– Law number 4703.

– Law on Protection of Consumers number 6502.

Please see this link for the full text of the Communiqué (only available in Turkish).

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