Edition 77: 30 April 2019
Editorial Team:
Orçun Çetinkaya, LL.M., Ezgi Baklacı, LL.M., and Pelin Oğuzer, LL.M.
Turkey’s Personal Data Protection Board Has Published the Summaries of Its Recent Decisions

Turkey’s Personal Data Protection Board (“Board”) clarified certain matters regulated under the Law on Personal Data Protection (“DP Law”) with the decision summaries published on 3 April 2019.

The Board’s decisions and events subject to them are as follows:

The applications regarding unauthorized online disclosure of personal data and document including personal data on the internet by unknown person/persons: The Board decided that:

-Notices and complaints related to the subjects within the judicial authorities’ remit will not be inspected as per Article 15 of the DP Law.

-There is no need to conduct any proceedings since the subject matter incidents involve crime elements and both were submitted to judicial authorities.

Application regarding the failure to fulfill data subject’s request related to the erasure of personal data stored by the data controller bank: By considering banks’ legal retention obligations, the Board found no need to conduct any proceedings based on the fact that ten years retention period has not expired.

Application regarding the transfer of legal entity’s data: The Board decided that:

-The request on the legal person’s data should not be evaluated under the DP Law

-The rights regulated under Article 11 of the DP Law may only be used by the data subject himself/herself or his/her legal representative.

Application upon the non-provision of a sufficient answer following the application to the data controller regarding personal data’s erasure: The Board instructed a public establishment as a data controller:

-To erase the personal data of which the retention period is expired,

-To inform the complainant regarding deletion transactions,

-Not to process the subject matter personal data except for the purpose of retention,

and gave 30 days to the data controller to comply with the decision. However, the data controller did not fulfill the necessary steps in due time and did not comply with all the instructions of the Board while informing the data subject. Therefore, the Board decided

-To impose an administrative fine and to initiate disciplinary proceedings.

-To instruct the data controller to inform the data subject in a sufficient manner already instructed.

Application for the examination of the personal data processing of group companies receiving job application via the online platform: The Board detected that the confirmation of the read of the privacy notice and obtaining of the explicit consent is carried out through clicking the same checkbox. Hereupon, the Board decided to instruct the data controller for separation of mechanisms to receive confirmation that privacy notice has been read and obtain explicit consent, in accordance with Article 5 of the Communiqué on Procedures and Principles to be Followed for the Data Controller’s Obligation to Inform.

You may reach the full texts of the summaries of decisions through below links (only available in Turkish):

Summary of Personal Data Protection Board’s Decision Numbered 2018/156

Summary of Personal Data Protection Board’s Decision Numbered 2018/142

Summary of Personal Data Protection Board’s Decision Numbered 2018/131

Summary of Personal Data Protection Board’s Decision Numbered 2018/118

Summary of Personal Data Protection Board’s Decision Numbered 2018/10

Summary of Personal Data Protection Board’s Decision  Numbered 2018/90

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The Validity Period of the Communiqué Regarding Decree Number 32 on The Protection of Value of Turkish Currency has been Extended

The Communiqué (“Amendment Communiqué”) amending the Communiqué regarding Decree number 32 on The Protection of The Value of Turkish Currency regarding exportation prices with number 2018-32/48 (“Communiqué”) was announced in Official Gazette number 30703 on 3 March 2019, entering into force on the same date. The validity period of the Communiqué was extended.

According to the stated amendment, the validity period of the Communiqué regulated under Article 13 of the Communique has been changed to 1 year from 6 months starting from the announcement of the Communique in Official Gazette. Therefore, the validity period of the Communique is extended until 4 September 2019.

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

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The Regulation on Methods and Procedures for Manufacturing, Labelling and Control of Tobacco Products has been Published

As stated in our previous article, by the date of 5 December 2018  Turkey introduced new plain packaging rules for tobacco and announced that details will be provided with a regulation. Mentioned regulation, The Regulation on The Methods and Procedures for Manufacturing, Labelling and Control of Tobacco Products (“Regulation”) has been published in Official Gazette number 30701 on 1 March 2019.

The Regulation introduces new bans and restrictions on tobacco products’ packaging. The provisions which will be applied starting from 5 July 2019 are as follows:

1. Brands of tobacco products imported or manufactured in Turkey should be written as follows:

-Only on package’s front surface, vertically and horizontally centred on the area below or next to the combined health warning sign.

-In the same direction as the text of the combined health warning.

-Coloured in Pantone Cool Gray 2 C Matte finish.

-As the first letter of the word will be uppercase and others lowercase.

-In uniform font size.

-With Helvetica font.

-Without using alphabetic, numerical, signs except for the “&” sign.

-No relief and foil will be used.

2. Tobacco producers’ trademarks and likewise distinctive statement should not:

-Introduce the tobacco product or encourage its consumption by creating a false impression of tobacco product’s characteristics, health effects, risks or emissions; provide incomplete information; mislead and deceive the consumer.

-Encourage or appeal the tobacco product.

-Suggest or imply that a particular tobacco product is less harmful than others, aims to reduce the effect of smoke’s harmful components, provides other positive health or lifestyle benefits; indicate that it has energizing, healing, rejuvenating, natural, organic features.

-Have the characteristics that refer to taste, smell, any flour or other additive or lack thereof.

3. The colour, shape and content of the Tobacco Packaging, and the product specifications:

-The colour and tone of the outer surface of the unit packages and groups of tobacco products should be Pantone 448 C Matte finish. The inner surface colour of the unit pack and group made of cardboard material should be Pantone 448 C Matte finish or white. The box should be in the colour of craft brown.

-The aluminium foil or metallized paper used in the unit packages of cigarettes should be silver coloured and should not have any tone difference in colour, and for backed paper foils, the back paper should be white. Textured aluminium foils cannot have pictures, patterns or symbols.

In accordance with this regulation, the producers may submit their application to be updated for compliance with this Regulation by 5 July 2019 at the latest. Market availability certificates that are not applied for update permission within this period are deemed to have been cancelled as of 6 July 2019.

Please see this link for the full text of the decision (Only available in Turkish).

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Turkish Constitutional Court Revoked the Provision Regarding Punishment of Preliminary Injunction Decisions’ Opponents

In its decision dated 11 July 2018 and numbered 2018/83, the Turkish Constitutional Court revoked the Turkish Civil Procedural Law’s (“CPL”) provision —which set forth disciplinary imprisonment from one month to six months for individuals who do not obey the preliminary or act contrary to it— for being in breach of Constitution’s Article 2 and 36.

The applicant Istanbul 1st Intellectual and Industrial Rights Court (“Applicant”) has requested the annulment of the contested provision by claiming that:

-Although the trial court was a civil court, the decision rendered within the scope of the contested provision has conclusions that fall into the scope of criminal law.

-Per the principle of legality, the acts to be punished, the legal elements of the crime and the aggravated circumstances were not provided clearly.

-There was no regulation regarding the rules and procedures of the judgment and the legal remedies that can be used against the decision.

The Turkish Constitutional Court has defined the preliminary injunction as temporary legal protection having a wide range of application in various legal disputes in terms of qualification and quantity, and highlighted the following points:

-In the contested provision the acts to be punished and the punishment’s type, minimum and maximum limits were clearly provided. Therefore, the provision could be predicted and known.

-The provision is appropriate and necessary to ensure the efficiency of the preliminary injunction decisions and respect to the court’s decision. In this regard, the provision conforms with the principle of proportionality.

On the other hand, the Turkish Constitutional Court has decided to the annulment of the first sentence of CCP’s Article 398/1 on the grounds of the following points:

-There is no specific provision on the trial procedures and principles concerning the disciplinary imprisonment to be imposed as a result of failure to abide by the preliminary injunction.

-There are various case-law concerning the legal remedy to be used against the disciplinary imprisonment imposed due to failure to abide by the preliminary injunction. In this respect, there is no stable and assuring practice or legal provision indicating the legal remedy to be used against the disciplinary imprisonment as well.

-In this scope, the contested provision is neither predictable nor accurate in terms of the trial procedures and principles for the disciplinary imprisonment, as well as the legal remedies to be used.

-Although the disciplinary imprisonment does not have the characteristics of a prison sentence and falls outside the concept of crime that is the subject matter of the criminal proceedings, the disciplinary imprisonment restricts the individual’s freedom. In this regard, the uncertainty of the mentioned points damages the individuals’ legal security and right to legal remedies.

The annulment decision of the Turkish Constitutional Court has been published in Official Gazette numbered 30692 on 20 February 2019 and will enter into force nine months after the date of publishing.

Please see this link for the full text of the Constitutional Court’s decision published in Official Gazette numbered 30692 on 20 February 2019 (only available in Turkish).

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