Within this article, we will discuss those actions that must be taken by a data controller to ensure its website complies with the statutory requirements of the Law on Protection of Personal Data numbered 6698 ("Data Protection Law") and discuss whether those information and documents published at a website as required by the Turkish Commercial Code ("TCC") constitute a breach within the meaning of Data Protection Law. Is there a cross over conflict between Data Protection Law and TCC in terms of what each law requires to be or refrain to be done?
- Practices and Methods with Regard to the Obligation to Provide Information
One of the main obligations of a data controller under Data Protection Law is to inform data subjects pursuant to Article 10 of Data Protection Law as well as under the Communique on the Procedures and Principles in the Fulfilment of the Obligation to Provide Information ("Communique"). In order to fulfill this obligation, a data subject has to be provided at least with that information cited under Article 10 of Data Protection Law, such as the purpose of processing and to whom personal data will be transferred, and in the fulfilment of this obligation, the procedures and principles set forth under the Communique must be taken into regard. Data Protection Law does not impose a formal requirement for the way in which such information giving must take place, but it only sets forth that minimum level of information that has to be provided. On the other hand, the Communique does provide certain guidelines in respect of formal requirements which must be fulfilled. However, whether the data controller must directly refer to a policy (or any such document) to be placed at the website for such obligation to be fulfilled or even drafting of such a document is not regulated anywhere. On the contrary, the Communique sets forth under Article 5 that such obligation to provide information can be fulfilled "either orally, in writing, by way of audio recordings or through customer care centres in physical circumstances or by electronic means." This being the case, under Article 5 (1) of the Communique, it is explicitly stated that burden of proof lies on the data controller with respect to fulfillment of this obligation.
An issue to remember by entities publishing such Privacy Notice on their website is that publishing a notice on their website in this form is, although being a starting point, in itself not sufficient for the fulfillment of the obligation to provide information data subjects pursuant to Data Protection Law.
Under Data Protection Law and its secondary legislation, the obligation to provide information is based on the "layered information" principle which is already adopted throughout the EU. As such, the Article 5 (1) (c) of the Communique clearly indicates towards this layered information principle by setting forth that in case separate departments of data controllers process personal data for different purposes, the obligation to provide information to the data subject must be fulfilled separately by each of such department. Accordingly, the Data Protection Agency ("DPA") is of the opinion that, instead of using long, complicated texts which are difficult to be understood by a reader, it is much more fit to purpose to provide data subjects with step by step information. This layered information can be provided using various methods both physically and electronically. Entities are deemed to have fulfilled the first "layer" of information physically if, for example, camera records are being collected through video cameras present at the workplace and a notice reading "We use camera surveillance at this workplace. Please consult an authorized person for detailed information" is displayed on a convenient, easily visible place for data subjects. Data subjects requiring detailed information can, on their turn, be provided with the minimum information mentioned in Article 10 of the Data Protection Law through a comprehensive and detailed Privacy Notice. In a similar manner, in case of contact with data subjects when data subjects use a website, a notice reading "If you pursue this action, your personal data will be processed by us. Please click for more detailed information" may appear on the data subject's screen, after which the data subject can be directed to a short and clear text, only mentioning the key points. Within this short text, another notice reading "Please click for more detailed information" can be placed, in order to direct the data subject to the comprehensive and detailed Privacy Notice. When constructing such Privacy Notice, one must, pursuant to the Communique, refrain from using general and ambiguous wordings and use comprehensive, clear and plain language instead.
In other words, we believe that is much more useful and fit to purpose to inform data subjects by way of providing layered information as mentioned hereinabove at each point they contact with the data subject, instead of providing data subjects directly with a long and detailed Privacy Notice.
- Approval Mechanisms Through Websites by Using Various Technologies
Two separate approvals are important with respect to compliance with Data Protection Law: i) approval in regard to having been informed and ii) explicit consent for processing of a data subject's personal data. In a statement for being informed, data subject states that it has read and understood the information given to it by the data controller, which enables the data controller to prove it has fulfilled such obligation. In both cases, the burden of proof with respect to fulfillment of this obligation lies with the data controller and therefore it is important that a legal entity data controller is taking these statements. This leads to the question of at which point it is important to prove that the data subject has read the information provided electronically and/or that the data subject has given consent electronically.
The important point with respect to the first approval referred hereinabove (approval in regard to being informed), is to determine the environment in which entities contact with the data subject and accordingly, the environment at which the data subject is being informed.
- If contact with the data subject is being conducted physically, thus the data subject is being informed face-to-face and a written statement is being obtained physically from the data subject on hardcopy, then this will, at first instance, be deemed sufficient in order to prove that the data subject has been informed. At this point, we would like to remind that the obligation to provide information is not exclusive to the execution phase of a contract only but applicable to updates which may occur throughout the whole transaction.
- If there is no physical contact with the data subject, thus no written statement is given physically and only platform in which the data controller and data subject is meeting is through website, than data controller is advised to place an "acceptance" mechanism as detailed hereinbelow to state that he/she has informed in order to be able to prove this in a possible dispute.
Whether the transaction with the data subject is pursued physically or through website, if the statements as set forth hereinabove are not obtained, data controller must make sure that, in light of the layered information principle, it provides the data subject with information each time it gets in contact with the data subject, so as to demonstrate it is fulfilling its obligation. However, obtaining statements as mentioned hereinabove is without a doubt for the benefit of the company.
Clearly, besides the obligation to provide information, obtaining consent is the fundamental obligation imposed by the Data Protection Law. However, in contrast with the obligation to provide information, which must be fulfilled at all times, obligation to obtain consent is subject to a separate evaluation. As such, if a legal entity is providing goods and/or services through its website and request personal data from the users, one should evaluate if an agreement is being executed with that user. If there is an agreement and the personal data of the user is being collected solely for purposes of execution of this agreement, there is no need to go through the approval procedure through the website since the data controller may process data with respect to Article 5/2 of Data Protection Law. Having said this, it should be also taken into account that the collected data may only be processed compatible with its purpose. On the other hand, if an agreement is not being executed with the user (and none of the other situations cited under Article 5/2 exist) data controller should take explicit consent from the data subject at this website (or at physical environment).
For purposes of evidence of these approvals (either for being informed and/or consent), data controller legal entity may adopt various consent mechanisms which are eligible to demonstrate a data subject's free will and demand. This mechanism can be by marking or clicking boxes reading "I consent", "I agree" or other statements of alike, or by way of using various other technological mechanisms such as swiping the screen to right/left motion. The important point is that the data subject needs to make an affirmative action as opposed to proceeding by merely remaining inactive. In addition to this, perhaps the most important aspect with regard to consent is that the data subject has to be clearly made aware of the subject it is giving his or her consent to. Thus, the importance of providing the right kind of information and the layered information approach is once again emphasized hereby.
According to Article 5/3 of the EU Directive, use of electronic communication networks to store information or to gain access to information stored in the terminal equipment of a subscriber or user is only allowed on condition that
- the subscriber or user concerned is provided with clear and comprehensive information in accordance with Directive 95/46/EC, inter alia about the purposes of the processing, and
- is offered the right to refuse such processing by the data controller.
Data Protection Working Party ("WP 29"), which issues briefing and/or implementation guidelines similarly to DPA, evaluated the above mentioned article of EU Directive in greater detail. According to WP 29, for that consent to be valid, it has to be freely given, specific, informed and should include unambiguous indication of wishes. As WP29 phrases, there should be "clear affirmative acts". In other words, prior to collecting data through cookies, the user should approve by way of clicking "I accept" or "I approve" or similar phrases, as detailed hereinabove.
- Documents/Information Published at the Website as per Commercial Code
Article 1524 of the Turkish Commercial Code numbered 6102 states that all capital companies subject to independent auditing, shall also open and maintain a website. Based on this article, the "Regulation Regarding the Websites of Capital Companies" is published at the Official Gazette No. 28663 dated May 31, 2013 ("Regulation on Websites") and it sets forth the compulsory contents to be published at such company websites. A part of these compulsory content also constitutes "personal data".
The companies subject to auditing publish required documents in their websites in order to be in compliance with the Regulation on Websites; however after Data Protection Law they should make an additional evaluation.
Prior to uploading documents and/or information to their website, these companies should; i) evaluate whether there is "personal data" within those documents to be published, ii) if there is personal data, evaluate whether it is compulsory to publish it or not, and iii) if it is compulsory, the proportionality of the published information with respect to the legal necessity and only then publish it. By virtue of adopting this principle, it will be possible to be in compliance with the Turkish Commercial Code without breaching Data Protection Law.
A frequently seen example in practice; majority of companies place their signature circulars at their website for the view of creditors and public at large which itself and together with its annexes contain various personal data of those appear in the circular (the most vivid example being a copy of the identity card of the relevant person). Relevant article, being Article 6/3 of the Regulation on Websites, is as follows: "the decision indicating the persons with representation authority from board of directors or board of managers and their authorities". As explained under this article, the legislation makes it compulsory to publish the relevant decision which makes reference to representation authority rather than the signature circular itself (and accordingly identity cards attached to the signature circular). In addition, there is also the blood type and religion group information appearing on that identity card, which constitute "personal data of special nature". As a result, these companies are prone to interpret this necessity arising from the Turkish Commercial Code in a broader perspective and publish more documents and/or information than it is required as per the legislation.
To conclude, even if the current view to publish as much as possible to ensure full compliance with Turkish Commercial Code website disclosure requirements could be a valid ground before Data Protection Law, the approach should be changed to "not publish if it is not compulsory" for all companies maintaining a website.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.