Transferring Personal Data Abroad 13 September 2017

1. Transferring Personal Data

The Article 8 of The Law on Protection of Personal Data numbered 6698 (“the Law”) indicates that, it is not possible to transfer personal data without the explicit consent of relevant party. However, the law maker regulated some exceptions under Paragraph 2 of the same article.

According to Paragraph 2 of Article 5 which is referred by abovementioned paragraph, the following cases are exceptions;

it is clearly provided for by the laws.
it is mandatory for the protection of life or physical integrity of the person or of any other person who is bodily incapable of giving his consent or whose consent is not deemed legally valid.
processing of personal data belonging to the parties of a contract, is necessary provided that it is directly related to the conclusion or fulfilment of that contract.
it is mandatory for the controller to be able to perform his legal obligations.
the data concerned is made available to the public by the data subject himself.
data processing is mandatory for the establishment, exercise or protection of any right.
it is mandatory for the legitimate interests of the controller, provided that this processing shall not violate the fundamental rights and freedoms of the data subject.

Moreover Paragraph 3 of Article 6 states that personal data of special nature apart from health and sexual life shall be processed without explicit consent in the cases provided by the Law. According to relevant provision; personal data of special nature relating to health and sexual life may only be processed without seeking explicit consent of the data subject for the purposes of protection of public health, operation of preventive medicine, medical diagnosis, treatment and nursing services, planning and management of health-care services as well as their financing.

However Article 6/3 of the Law indicates that required measures must be taken to transfer personal data.

2. Transfering Personal Data Abroad

Article 9 of the Law regulates the issue of transferring personal data abroad. Accordingly, personal data shall not be transferred abroad without the explicit consent of data subject. Paragraph 2 of Article 9 regulates transferring personal data abroad in the cases mentioned by Paragraph 2 of Article 5 and Paragraph 3 of Article 6. On the other hand, there are some additional conditions for transferring data abroad in exceptional cases.

In this manner, in order to transfer personal data abroad in exceptional cases, the country which data shall be transferred must satisfy following conditions;

a) Existence of sufficient protection,

b) The controllers in Turkey and the relevant country must guarantee sufficient protection and The Board approves it for the situations devoid of sufficient protection.

Pursuant to Paragraph 3 of Article 9 of the Law, countries with sufficient protection are declared by Personal Data Protection Board (“Board”). On the other hand, because The Board has not declared a country with sufficient protection yet, there is no consensus over which countries ensure such protection.

Türkçe Versiyonu İçin

http://www.kasaroglu.av.tr/tr/kisisel-verilerin-yurtdisina-aktarilmasinda-dikkat-edilmesi-gerekenler

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