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Processing Personal Data Based on Legitimate
Interest: A Comparison of Turkish Data Protection Law, the Directive 95/46/EC
and the GDPR
Turkey's
first and only law specifically dedicated to data protection and privacy, the
Law No. 6698 on Protection of Personal Data ("Law No. 6698"), came into force
on April 7, 2016 with certain transition periods. The Data Protection Board has
been formed, but is not yet functioning. The secondary legislation is still
pending, although certain sector-specific regulations have been put in place,
and is expected to be completed by April 7, 2017.
The Law No. 6698 is essentially
based on the EU Directive 95/46/EC ("Directive") with particular differences.
As Turkey does not have a history of data protection laws and practice, the
interpretations of the Directive in the EU will shed a light unto the
interpretation of the Law No. 6698. That said, EU is in a period of transition
to a new data protection regime and has recently introduced a game changer, the
General Data Protection Regulation ("GDPR"), which will enter into force on May
25, 2018. Directive will no longer be applicable once the transition is over.
Therefore the Directive should not alone be taken into account when construing
the provisions and implementation of the Law No. 6698.
Among the provisions of the Law No.
6698, one of the most debated provisions and the one which is highly likely to
lead to further discussions and disputes in the future, is Article 5/2(e) of
the Law No. 6698. The article provides a legal ground for processing of
personal data without the data subjects' explicit consent (which is the primary
requirement for processing personal data), if the processing is necessary for
the legitimate interests of the data controller. The provision corresponds to
Article 7(f) of the Directive and Article 6/1(f) of the GDPR.
The next part of this article will
demonstrate how this provision (Article 5/2(e) of the Law No. 6698) is
articulated in these three different regulations separately and will be
followed by a comparison, highlighting their similarities and differences. The
final part will consist of conclusions on the possible impacts of these differences
in the Turkish jurisdiction and a discussion on whether the
reasons that led to changes in the Directive could be used as tools of
interpretation of the Turkish data protection law as well.
II. Conditions for processing
personal data based on legitimate interest under the Directive
Article 7(f) of the Directive states that personal data may be
processed if it is necessary for the purposes of the legitimate interests
pursued by the controller or by the third party or parties to whom the data are
disclosed, except where such interests are overridden by the interests for
fundamental rights and freedoms of the data subject.
The
Directive provides that personal data may be processed for the purposes of the
legitimate interests pursued by (i) the data controller or by (ii) the third
party or (iii) parties to whom the data are disclosed.
Then requires an evaluation of interests of the data
controller/third parties versus interests "or" (this has been mistyped in the
English version of the Directive as "for" (Art. 29 WP's Opinion 06/2014)) fundamental rights and freedoms of the data subject.
This evaluation is commonly referred to as a "balancing test". In
this balancing test, one should weigh the nature and source of the legitimate
interests and the necessity of processing for pursuing those interests, against
the impact of the processing on the data subjects.
As for the data subjects' right to object such processing, the
Directive requires the data subject to justify its objection (Article 14 of the
Directive). If there is a justified objection, then the processing instigated
by the data controller no longer involves those data.
III. Conditions for
processing of personal data based on legitimate interest under the GDPR
Article 6/1(f) of the GDPR
states that processing is necessary for the purposes of the legitimate
interests pursued by the controller or by a third party, except where such
interests are overridden by the interests "or" fundamental rights and freedoms
of the data subject which require protection of personal data, in particular
where the data subject is a child.
GDPR articulates this
complementary legal ground quite similar to the Directive and requires the same
balancing test. That said, the GDPR brings a significant difference regarding the
personal data that belongs to children and the data processing performed by
public authorities.
GDPR expressly requires
particular consideration onto children's interests or fundamental rights and
freedoms and information provided to them when processing of their personal
data based on this provision. In practice this might lead to obtaining a parental
consent before processing personal data of children or providing age restrictions
as legal safeguards. Considering the purposes of this addition, the application
might even be extended to the vulnerable segment of the population such as
handicapped people or people who does not have or significantly lost their
power of discernment for other reasons. Paragraph 75 of the GDPR's recital also
uses the term "vulnerable natural persons", which is obviously broader and more
comprehensive than "children".
The other addition to
the relevant provision in the GDPR is the second paragraph, which has not been
mentioned above. According to this paragraph (Article 6/2 of the GDPR), Article
6/1(f) does not apply to processing carried out by public authorities in the
performance of their tasks. This newly introduces exception prohibits public
authorities from relying on their legitimate interests in processing of
personal data, for the processing carried out in the performance of their
tasks. The recital of the GDPR clarifies the reason of this amendment by
stating that the legislators have the duty to provide legal basis through
issuing laws for public authorities to process personal data in the performance
of their tasks and prevents the public authorities from processing personal
data based on their legitimate interest in the processing.
GDPR shifts the burden
of proof, as to data subjects' objection to processing, from the data subjects
onto the data controllers. According to the GDPR, if the data subject objects
to processing of its personal data, which is processed based on legitimate
interests of the data controller, the data controller may no longer process the
personal data unless the data controller demonstrates compelling legitimate
grounds for the processing which override the interests, rights and freedoms of
the data subject or for the establishment, exercise or defense of legal claims.
IV. Conditions for processing of personal data based on legitimate
interest under the Law No. 6698
Article 5/2(f) of Law
No. 6698 also provides a quite similar provision which states that personal
data may be processed without data subject's explicit consent, if processing is
necessary for the purposes of data controller's legitimate interests, provided
that the processing does not harm the data subject's fundamental rights and
freedoms.
The
reasoning of this provision issued by the legislator provided an example for
implementation of this provision stating that owner of a company may process
its employees' personal data for arranging their promotions, salary increases
or social rights or determining their role in the restructuring of the company,
which constitute legitimate interests of that company. The legislator also
indicates that although the explicit consent of the data subject is not
required in these cases, the fundamental principles as to protection of
personal data should still be complied with and the balance of "interests" of
the data controller and the data subject should be taken into account.
The
wording used in the provision's reasoning is interesting considering that the
provision does not mention the "interest" of the data subject but rather
requires the processing not to harm the data subject's fundamental rights and
freedoms. The reasoning provides a wider protection in favor of the data
subjects, which would also be consistent with the Directive and the GDPR.
V. Comparison of the conditions provided under the Law No. 6698 with
the Directive and the GDPR
The Law No. 6698
provides that personal data may be processed without obtaining consent, for the
data controller's legitimate interests, whereas the Directive and the GDPR provides
that personal data may be processed for the purposes of the legitimate
interests pursued by (i) the controller or by (ii) the third party or (iii)
parties to whom the data are disclosed.
The balance test
provided under the Directive and the GDPR require an evaluation of interests of
the data controller/third parties versus interests or fundamental rights and
freedoms of the data subject. However the Law No. 6698 only requires an
evaluation of interests of the data controllers versus fundamental rights and
freedoms of the data subject, without including the "interests" of data
subjects in this assessment. As mentioned above, the reasoning of the law
emphasizes the balance between "interests". However this was not expressly
articulated in the provision.
Besides, the GDPR
expressly indicates emphasizes that data controllers should be more careful in
processing data subject's personal data based on their legitimate interest
where the data subject is a child. The Law No. 6698 does not put a special
emphasis on protection of personal data in cases where the data subject is
child or any other person which might be considered vulnerable.
GDPR excludes public
authorities from relying on their legitimate interests in processing of
personal data, for the processing carried out in the performance of their
tasks. The Law No. 6698 does not provide such an exception and allows public
authorities to process personal data in the performance of their duties, based
on their legitimate interest as well.
Since the last two
were not also included in the Directive, they might not have been consequently
incorporated into the Law No. 6698. As for the data subjects' right to object,
the Law No. 6698 does not include a provision particular to processing
conducted based on legitimate interests, and is silent on the burden of proof.
VI. Conclusion
The legal ground
provided under the Law No. 6698 for processing personal data based on
legitimate interest is overall in line with the Directive and the GDPR. However
there are particular differences in the wording of the provisions, which could
lead to a significant deviation from the EU practice.
Turkish legislators
excluded the legitimate interests of third parties and the parties to whom data
are disclosed from the scope of this exception. This brings the question of
whether the public's overriding interest in having access to certain
information, for instance the public's interest in receiving information
regarding the whistleblowing of irregularities in the public authorities or
regarding felonies that concern the public or other information disclosed for
transparency and accountability, will not be sufficient for disclosure and
dissemination of such information to public or other groups (e.g. employees of
a company) that are concerned. Would it be necessary to obtain the data
subject's explicit consent even when there is an overriding public interest in
the processing in Turkey?
This question might
find its answer in the forthcoming days through Data Protection Board decisions
and court precedents on the matter or in the secondary legislation to be issued.
Nevertheless, there are currently a couple of other provisions in the Law No.
6698, which might serve for the same purpose through interpretation. For
instance the Law No. 6698 provides a number of exemptions from the application
of the law. Among these exemptions, one of them provides exemption to
processing of personal data within the scope of freedom of speech, but only if
the processing does not breach national defense, national security, public
safety, public order, economic safety, privacy of private life or personal
rights. This provision might be construed for the interests of the public and
third parties, and might serve as a legal ground for processing of data when
there is public's overriding interest, without requiring explicit consent of the
data subject.
The Directive and the
GDPR requires both "interests" and "fundamental rights and freedoms" of the
data subjects to be considered when exercising a balancing test, whereas the
Law No. 6698 does not mention the "interests" of the data subjects. Therefore
the scope of application of the relevant exception provided under the Law No.
6698, in this respect, is broader when compared to the Directive. This would
allow a wider area of processing personal data when there is a legitimate
interest of the data controller, since data controller would be obliged to
consider whether the data subject's fundamental rights and freedoms override,
rather than also considering whether their interests override the data
controller's legitimate interest in processing the data without the data
subject's consent.
There has been a quite
important change in the GDPR, which shifted the burden of proof as to
objections regarding processing based on legitimate interests, from the data
subjects onto data controllers. On the other hand, the Law No. 6698 does not
include any provision as to cases where the data controller has legitimate
interest in processing personal data but the data subject objects to such
processing and remains silent as to burden of proof in such cases.
Adoption of a
supra-national regulation (Directive) rather than a directly applicable law
inevitably leads to certain gaps in the legislation for a civil law country. Nevertheless,
the legislators could have at least addressed all the issues addressed in the
Directive. This could have prevented further gaps and ambiguities in the
legislation in addition to the ones inevitably borne.
Furthermore the
supra-national regulation that the Law No. 6698 is based on, is older than
twenty years. As the EU legislation evolves, the Turkish legislators and the
Data Protection Board should make use of the past experiences of the EU and
construe and implement the Law No. 6698 and issue the secondary legislation in
light of the GDPR which was a result of the remarkable data protection history
of EU.
(First published in Mondaq on February 24, 2017)