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)