Edition 71: 8 November 2018
Editorial Team:
Orçun Çetinkaya, LL.M., Ezgi Baklacı, LL.M., and Pelin Oğuzer, LL.M.
Turkey’s Data Protection Board Announces that Advertising Using Data Subjects’ Contact Addresses Unlawfully Must Cease

Turkey’s Data Protection Board (“Board”) has announced that advertising using data subjects’ contact details unlawfully should cease. The Board has stated that those advertising via e-mail, SMS and calls should cease such activities. The Board will impose sanctions for failures to do so.

The Board announced that:

– Data controllers and data processors must cease advertising through e-mail, SMS or calls if such activities do not fall within the scope of exceptions contained in the Data Protection Law, or data subjects’ consent for such processing is not obtained.

– Data controllers must take technical and administrative measures to prevent unlawful access and data processing, as well as provide adequate levels of protection. If data is processed by a third party, data controllers will be deemed jointly liable for such activities.

– Sanctions will apply to those who fail to comply with the points mentioned above. Given the risk of obtaining such information unlawfully, breaches will also be notified to the Prosecutor’s Office.

Please see this link for the full text of Ruling Number 2018/119, which was published in Official Gazette number 30582 on 1 November 2018 (only available in Turkish).

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Turkey Revises Accounting Principles on Mergers of Establishments Subject to Joint Control

Turkey has revised accounting principles for mergers of establishments which are subject to joint control, eliminating uncertainty about this issue and ensuring consistency in practice. The revised accounting principles apply to mergers which are performed during accounting periods beginning 1 January 2018 onwards.

The Public Oversight, Accounting and Auditing Standards Board (“Board”) issued Principle Decision Number 2018-1 regarding Implementation of Turkish Financial Reporting Standards (“Principle Decision”).

The Principle Decision abolishes the earlier Principle Decision on Accounting of Mergers of Establishments Subject to Joint Control, contained in Annex-1 of the Board Decision published in Official Gazette number 28714 on 21 July 2013.

The Principle Decision was published in the Official Gazette number 30568 on 17 October 2018. Please see this link for the full text of the Principle Decision.

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Turkey’s Ministry of Customs and Trade Organizes Training Courses and Seminars to Support Protection of Intellectual Property Rights at Customs Points

Turkey’s Ministry of Customs and Trade (“Ministry”) has continued to organize training courses and seminars in 2018, addressing intellectual property rights at customs points. The first was held in Mersin on 24 and 25 October 2018, attended by right holders, their representatives and customs officers. Around ten more similar trainings are expected for the future, although dates are not announced yet.

Given Turkey’s geographic position, customs points are critical points for detecting and preventing import or export of counterfeit products. The Ministry is aware of this importance and has organized customs training programs in the past to increase the awareness of customs officials about brands and goods, as well as share some tips to help determine whether goods are counterfeit.

Upon heavy demand by right holders, the Ministry has organized training courses and seminars in several regions again, one year on from earlier ones.

The Mersin training was attended by:

– Representatives of 56 different trademarks.

– 50 officers/supervisors from Mersin, Adana, Taşucu and Niğde Customs.

– Two people from the Ministry.

During the seminars, right holders and their representatives gave presentations regarding product identification, as well as information about the general characteristics of original/counterfeit products, manufacturing relationships, and commonly inflow routes for counterfeit goods.

An authorized person from the Ministry gave a presentation about the Ministry’s Customs Watch Program, which provides protection for intellectual property rights.

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Turkey Consults on Proposed Details for Online Broadcasting Regime

Turkey’s Radio and Television Supreme Council (“RTSC”) and Information and Communication Technologies Authority (“ICTA”) have jointly published proposed rules for online broadcasting, providing detail of the regime outlined in the Law on Establishment and Broadcast Services of Radio and Televisions Number 6112 (“Law”, more). The proposed rules are open to public submissions.

Article 29/A of the Law states that the RTSC and ICTA must mutually prepare rules and procedures for:

– Executing the Law.

– Providing radio, television and on- demand broadcasts services over the internet.

– Transmitting radio, television and on-demand broadcasts services over the internet.

– Providing broadcast license to media service providers.

– Providing transmission authorization to platform operators.

– Controlling broadcasts.

Accordingly, the Draft Communiqué on Submission of Radio, Television and Voluntary Broadcasts through the Internet was published for public opinion on 27 September 2018 (“Draft Communiqué”).

Scope of the Draft Communiqué

The Draft Communiqué applies to:

– Online radio services.

– Online television services.

– Online on-demand broadcasts services.

– Online private media service providers and platform operators.

Licenses and authorizations

Notable provisions in the Draft Communiqué regarding licenses and authorisations include:

– Media services providers which wish to transmit online broadcast services must obtain separate broadcast licenses from RTSC for radio, television and on-demand broadcasts.

– Platform operators which transmit broadcasts through their web addresses or mobile applications must obtain a broadcast transmission authorization from RTSC.

– Online broadcast licenses will be issued for ten years.

– Fees:

– Radio broadcast license fee: 10,000 Turkish Lira.

– Television broadcast license fee: 100,000 Turkish Lira.

– Voluntary broadcast license fee: 100,000 Turkish Lira.

– Annual broadcast transmission fee: 100,000 Turkish Lira.

Foreign entities

The Draft Communiqué proposes that to broadcast within Turkey, a license is required for:

– Media service providers located outside Turkey, which do not broadcast in Turkish.

– Platform operators located outside Turkey.

These foreign entities should establish a Turkish legal entity in order to obtain the necessary licenses and authorizations.

Failures to comply

The RTSC will serve notices to media service providers and publish these on its website if these entities:

– Make broadcasts without obtaining a broadcast license.

– Continue to make broadcasts after RTSC cancels their license.

If media service providers fail to comply after receiving such notice, the RTSC will obtain an access denial decision through the criminal court of peace, then will file a criminal complaint about the persons and/or entities which are making unauthorized broadcasts.

In parallel, the RTSC will also serve a notice to online broadcasting platform operators. If these fail to comply after receiving such notice, the RTSC will obtain an access denial decision regarding the platform through the criminal court of peace, then will file a criminal complaint about the persons and/or entities which are making unauthorized transmissions.

Powers and responsibilities

The Draft Communiqué outlines the responsibilities of media service providers and platform operators against the RTSC, along with the RTCS’s audit powers.

Accordingly, media service providers and platform operators must provide any information and document which the RTSC requests regarding the number of users, which an entity provides conditional access to.

Fines

The ICTA will issue fines to access, content or hosting providers which fail to:

– Take necessary steps to execute an access denial decision.

– Remove content from a broadcast as instructed in an access denial decision.

Transition period

The Draft Communiqué outlines detailed transitional provisions. Notably, a one-month transition period is proposed for obtaining license and transmission authorizations.

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

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Turkey Consults on Proposed Amendments for Geographical Indications and Patents

The Turkish Patent and Trademark Office (“TPTO”) has announced proposed amendments to Industrial Property Law Number 6769 (“IP Law”) and sent these to related ministries and organizations to receive their opinions and comments. The proposed amendments relate to geographical indications and patents.

The proposed changes can be summarized as follows:

– The IP Law requires an inspection report to be submitted annually to the TPTO for geographical indications and traditional specialities. The TPTO will publish the registration in the Geographical Indications and Traditional Specialties Bulletin for the applicant to be changed if the inspection is not sufficient, the report is not submitted, or deficiencies are not remedied. The registration will be cancelled if nobody applies to become the new owner within three months. The proposed amendments introduce a three-month period before the application is published, allowing the applicant to establish a new inspection authority.

– Currently, any changes which exceed the scope of a patent application are excluded from consideration during the search report process. The process can result in a patent application being refused, or the applicant making a new application. The proposed amendments state that in such situations, the patent’s application date will be updated and the date of the change will be the application date, to prevent possible negative outcomes.

– All references in legislation to the Decree Law on Protection of Patent Rights Numbered 551 will be deemed to refer to the IP Law, since the previous legislation has been cancelled.

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

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Turkish Constitutional Court: Failure to Expropriate Land for 27 Years Breaches Constitutional Property Rights

The Turkish Constitutional Court recently ruled that an excessive personal burden had been placed on a property owner where the state had not expropriated a piece of real estate for 27 years since the expropriation had first been approved in a zoning plan. The court ruled that a fair balance must exist between protecting individual property rights and the public interest. The Constitutional Court ruled the balance had deteriorated in this case.

In the case at hand, the real estate was allocated as a road in zoning plans produced in August 1989 and February 2004. However, no expropriation process actually occurred during the following 27 years.

The Constitutional Court noted the following points in its reasoning:

– Property rights (Article 35 of the Constitution) are not unlimited. Rather, the Constitution contemplates restricting this right by law and for the public interest.

– The principles for restricting fundamental rights and freedoms (Article 13 of the Constitution) must be considered when interfering with the property rights. Accordingly, an interference with property rights must:

– Be regulated by law.

– Support the public interest.

– Be proportional.

– According to the principle of proportionality, there should be a reasonable degree of fairness between the purpose of the intervention by public authorities and the means used to achieve this objective. Making this assessment should consider:

– Convenience.

– Necessity.

– Proportionality.

– Legislators envisaged expropriations to be completed within five years. Property owners may be expected to bear the restrictions for a reasonable period of time in order to achieve such public interests.

– According to 2016 amendments to the Expropriation Law Number 3194 and an earlier decision from the Council of State, failure to expropriate immovable property which had been allocated to the public service in development plans within five years of approval results in uncertainty for the use of property rights.

Please see this link for the full text of the Constitutional Court’s decision dated 20 September 2018 and numbered 2017/24715 which was published in Official Gazette number 30567 on 16 October 2018 (only available in Turkish).

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Turkish Court of Appeals: Spousal Consent Not Required for Avals

Article 584 of the Turkish Code of Obligations (“TCO”) requires spousal consent for the validity of surety agreements. Turkey’s Court of Appeals recently ruled that spousal consent is not required for validity of avals, which are regulated separately under the Turkish Commercial Code (“TCC”).

The TCO regulates surety agreements as agreements where the surety undertakes to be personally liable for the consequences of the debtor’s non-performance. Natural persons can act as sureties, provided they obtain the written consent of their spouses (Article 584 of the TCO).

Article 584 of the TCO aims to protect the unity of families. However, it has been the subject of heavy criticism on the basis that it slows down commercial life. Accordingly, some transactions have since been excluded from the spousal consent requirement.

Article 603 of the TCO states that the provisions regarding the required form for suretyship, the capacity of a surety and the spousal consent also apply to different named agreements executed by natural persons which provide personal assurance. Article 603 aims to prevent creditors from concluding contracts under different names as a way of evading provisions which protect sureties.

The TCC regulates avals as personal assurances regarding bills of exchange. An aval assures complete or partial payment of the amounts subject to the bill of exchange.

Uncertainty existed about whether spousal consent, deemed to be a form requirement for surety agreements, is also required for avals.

The General Assembly on Unification of Judgments of the Court of Appeals decided by majority that an aval is a unilateral legal transaction, which the TCC regulates separately from surety agreements (regulated under the TCO). On this basis, the court decided that Articles 584 and 603 of the TCO, which apply to all agreements providing personal assurance, do not apply to avals.

The court noted that if spousal consent is required as a validity requirement for an aval which has an economic function in addition to its assurance function, this would lead to significant inconveniences for the required legal form of both the bill of exchange and the spousal consent, as well as prevent bills circulating. The court noted that such requirement would impose severe liability on the bill’s bearer to question the existence of the spousal consent and therefore contradict the “abstraction principle”.

Please see this link for full text of the Turkish Court of Appeals’ decision dated 20 April 2018, numbered 2017/4 E and 2018/5 K and published in Official Gazette dated 16 October 2018 (only available in Turkish).

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