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In this report, our firm have gathered the recent decisions, notifications, announcements and guidelines issued by Turkey’s Data Protection Authority (“Authority”) in February 2019.
A Cyber Attack Hits Turkey’s Auto-Leasing Industry
Between January 31, 2019 and February 20, 2019, Turkey’s six automobile leasing and rent-a-car companies notified Turkey’s Data Protection Authority (“Authority”) that personal data of their clients might have been stolen. The Authority decided to publish these six companies’ data breach notifications on its web-site.
All five notification have one common name, “Optimum”, as a reason of the notifications. Optimum is the road-assistance, repair, towing services provider with which all of these five companies have business relationship. Reportedly, Optimum was targeted by a cyber-attack and the data kept in Optimum’s database was accessed by unauthorized users.
What is the applicable law?
Article 12 (5) of the Law on the Protection of Personal Data No. 6698 (“Law”) requires that if the personal data is obtained by third parties through unlawful means, the data controller shall notify the data subject together with the Authority.
The Authority published Optimum’s own data breach notification on January 25, 2019. In short, Optimum says “we know we have been attacked but we do not know the damage yet”. Also, adds “We are preparing a detailed technical report”. In January, as a first wave of data breach notifications in automobile-leasing industry, three companies notified the Authority as to the cyber-attack that targeted Optimum. So, in total, ten companies, including Optimum, applied to the Authority with data breach notifications.
The other common aspect of the notifications is that the companies are not sure on how many people’s data affected by the cyber-attack. Moreover, the authority or the companies still do not know whether or not the data copied or somehow stolen by the hackers. Though the companies are not sure on the number of the individuals whose data was stolen, they have some estimates. One estimates that 4,000 individuals’ data was stolen, manipulated or somehow affected. Other one says at least 90 of its clients’ data was likely to be stolen. The highest estimate mouthed until now is 90,000. Among many uncertainties, it is clear that the investigations are still ongoing and we will likely to hear more data breach notifications in March.
Note: There are also two other data breach notifications published on the Authority’s web-site in February. One submitted by a Travel Agency company reporting that 67.519 individuals’ data might have been copied unlawfully. The other one is from a hotel. The hotel was targeted by a cyber-attack and the Hotel’s back-up data was deleted by the hackers.
Decision: “about the data controller who transfers health data to a third party without complying with the processing requirements referred to in Article 6 of the Law” dated 05/12/2018, numbered 2018/143
The complainant filed to the Authority petitioning that the complainant’s private health data being shared by his/her pharmacy with a third party without complying with the processing requirements.
What is the applicable law?
Article 6 of the Law regulates the processing of special categories of personal data. According to this article, health-related data is in special categories of data and cannot be processed without the explicit consent of the data subject. Health-related data can only be processed without explicit consent by the persons or authorities that are authorized to maintain; public health protection, preventive medicine, medical diagnosis, treatment and care services, and for the confidentiality of health care services.
Article 8 of the Law regulates that the personal data cannot be transferred to a third party without explicit consent from the data subject, and Article 12 prohibits the data processers and controllers to share data with third parties unlawfully. Data controllers that do not comply with the law may be subject to administrative fines minimum of TRY 15.000 and maximum of 1.000.000 pursuant Article 18 of the Law.
The Authority has determined that the data processing of the pharmacy was unlawful and imposed administrative fine pursuant to Article 18 of the Law.
Decision: “about the data controller who cannot fulfill its obligation of preventing unlawful access to personal data” dated 26/07/2018, numbered 2018/91
A complainant alleged that his/her personal information made unlawfully accessible by a online shopping web-site to other customers of the web-site. The complainant had submitted a request to the company for his/her personal data kept by the company to be deleted, destroyed, rendered unreachable from their database, , and if shared with another party, to be deleted and destroyed by those databases as well. After this request, the complainant filed to the Authority complaining that the company’s response was insufficient.
What is the applicable law?
Article 12 of the Law regulates that the data controller is obliged to prevent the unlawful processing and access of personal data and to take necessary preventions and safety measures. Article 7 of the Law regulates that if the personal data is no longer necessary in relation to the purposes for which it was collected or otherwise processed, the data controller has to erase destroy or anonymize the data. Article 11 of the Law grants the data subjects’ right to know if their data has been transferred to the third parties. Also, under the Article 7, data subjects are entitled to request their personal data to be erased or deleted.
The Authority concluded that the measures taken by the company were not adequate and decided to impose an administrative fine to the company in accordance with Article 18 of the Law. Additionally, the company has been ordered to meet the request of the complainant within 30 days.
Decision: “about the personal data in the registry files should not be destroyed because the reasons for data processing are still valid” dated 28/06/2018, numbered 2018/69
The public officers had made a request for the destruction of their documents related to the investigation files opened during the course of their civil service. Then the officers applied to the Authority since their request to the public authority was not fulfilled.
What is the applicable law?
Article 7 of the Law requires that if the personal data is no longer necessary in relation to the purposes for which it was collected or otherwise processed, the data controller has to erase, destroy or anonymize the data. Article 109 of the Law No. 657, Civil Servant Law, states that a personnel file will be kept for each officer, the file contains the professional information of the officer, the declarations of the goods; if any, the examination, investigation, audit reports, disciplinary penalties, and information and documents related to awards documents. In section D of the Public Staff General Communiqué (Serial No: 2), it has been regulated that the personnel files of the officers whose duties are terminated in any way will be kept by the institutions.
The Authority held that the data controller’s rejection to the officers’ request was lawful.
The Authority Issues a Guide on the Article 13 of the Law
Article 13 of the Law sets the principles of the request made to the data controller. Under Article 13, requests must be made in writing and the data controller shall conclude the request as soon as possible and within thirty days at the latest, free of charge according to its nature. Due to the article’s ambiguous language structure, there has been differences on how the article interpreted. The Authority issued a guidance on the Article 13.
In the event that a response is submitted within 30 days by the data controller, the data subject can make a complaint within 30 days following the response. Therefore, there is no 60-day period from the date of the request to the data controller in such cases.
In the event that the request is not answered by the data controller, the data subject can make a complaint to the Authority within 60 days of the date of the request to the data controller.
If a request is answered by the data controller after 30 days, the data subject is not obliged to wait for the response. The data subject will be able to make a complaint to the Authority upon the expiration of the 30 days period given to the data controller. This period is 60 days from the date of request to the data controller, not 30 days after the response.
Author: Yunus Çağlar