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LPPD vs GDPR

Turkey’s Law on the Protection of Personal Data (LPPD) is considered the trendsetter for data protection’s comprehensive worldwide legislation. Turkey published LPPD covering personal data protection on April 07, 2016. The LPPD is based on the European Union Data Protection Directive 95/46/EC and aims to ensure individuals’ data protection and rights. Similarly, on 14 April 2016, EU lawmakers prepared the draft of the General Data Protection Regulation (GDPR). On 25 May 2018, the European Union's General Assembly put the GDPR into effect to ensure that individuals get greater control of their personal data and organizations secure their personal data.


Scope

Both GDPR and LPPD apply to entities that collect and process personal data belonging to EU and Turkey residents, respectively, irrespective of the physical presence of the controller or processor. LPPD and GDPR apply to the processing of "Personal data," which means any kind of information relating to an identified or identifiable person. Following is a more in-depth comparison between the two regulations.

Articles 1(1), 2(1), 17

LPPD applies to natural persons whose personal data are processed and natural or legal persons who process such data fully or partially through automatic means or provided that the process is a part of any data registry system, through non-automatic means.

LPPD does not differentiate between private corporations and public authorities and applies to all institutions and organizations.

LPPD is silent on its extraterritorial scope in terms of data origin; however, it is generally accepted that it applies to data processing activities related to personal data originating in Turkey.

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Articles 3, 4(1) Recitals 2, 14, 22-25

GDPR “applies to natural persons, whatever their nationality or place of residence, concerning the processing of their personal data.”

Regarding extraterritorial scope, GDPR applies to organizations that are not established in the EU, but instead monitor individuals’ behavior, as long as their behavior occurs in the EU.

GDPR also applies to organizations located outside the EU (those that do not have an establishment in the EU) if they offer goods or services to, or monitor the behavior of, data subjects located in the EU, irrespective of their nationality or the company’s location.


Rights

Both regulations give individuals rights relating to their personal data, which they can exercise. Under LPPD, the data controller must process data subject’ requests and take all necessary administrative and technical measures within 30 days. LPPD does not provide a period extension. There is no fee for the data subject’ request to data controllers. However, the data controller may impose a fee, as set by the Data Protection Regulation Authority, if the request necessitates a response. Under LPPD, the data subject also has the right to complain to the Turkish Personal Data Protection Authority (KVKK). The KVKK must inform the data subject of the progress and outcome of his or her complaint.

GDPR also ensures data subject’ rights where the data subjects can request the controller or processors to implement their rights. GDPR allows controllers and businesses to either charge a reasonable fee or refuse to respond to manifestly unfounded or excessive data subject’ requests. Furthermore, under GDPR, the controller must inform the data subject of the reasons for not taking any action on their request without delay and within one month of receipt, at the latest. The following section explains each right and how they differ across the two laws.

Articles 7, 10, 11, 13
Article 12 of the Regulation on Erasure, Destruction or
Anonymization of Personal Data

LPPD requires data controllers to delete the personal data upon demand by the data subject if the reasons for processing no longer exist. However, in any scenario, data subjects can have the right to request the deletion of their personal data.

The LPPD does not provide any exceptions to the right of deletion.

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Articles: 12, 17 Recitals: 59, 65, 66

The right to erasure only applies in instances where consent is withdrawn. There is no other legal ground for processing or when personal data is no longer necessary for the purpose for which it was collected.

The data subject’ requests under the right to deletion must be responded to without delay and in any event within one month of the receipt.

The deadline can be extended to two additional months where there is great complexity or depending on the number of requests. In any of these cases, the data subject must be notified of any such extension within one month of receiving the request, along with the reasons for the delay and the possibility of complaining to the supervisory authority.

Articles 10. 11

Data subjects have the right to be informed about the processing of their personal data. They also have the right to know the purpose of data processing and whether their data is used for the intended purposes.

When collecting personal data, the controller or the person authorized by him is obliged to inform the data subjects about the following:
the identity of the controller and his representative, if any,

  • the purpose of data processing,
  • the identity of the controller and his representative, if any,
  • the recipients to whom the data can be transferred, and the purpose of the transfer,
  • the methods and legal reasons for the collection of personal data,
  • other rights referred to in Article 11.

The controller is obliged to inform the data subject when the data processing adheres to the data subject’s explicit consent or processing under another condition of the LPPD. The controller should inform the data subject in every situation where his or her personal data is processed.

The LPPD provides a general requirement to provide information on the collection methods but does not explicitly refer to automated decision-making or profiling.

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Articles: 5-14, Recitals: 58 - 63

This right requires the controller to provide the following information to the data subject when requested. This should be given in a concise, transparent, intelligible, and easily accessible form, using plain language:

  • The identity and contact details of the controller, controller’s representative, and DPO, where applicable
  • The purpose and the legal basis of the processing
  • The categories of personal data concerned
  • The recipients of the personal data
  • The appropriate or suitable safeguards and the means to obtain a copy of them or where they have been made available

The controller must provide information necessary to ensure fair and transparent processing whether or not the personal data is collected from the data subject. This information includes the duration of data storage, the controller’s legitimate interests, and the existence of the rights to access erasure, rectification, restriction of processing, data portability, and filing complaints to the supervisory authority.

Data subjects must be informed of the existence of automated decision-making, including profiling, at the time when personal data was obtained.

Articles 11, 23, 27, 30

Data subjects have the right to object if the processing results in a negative outcome for them due to the analysis of their data by automatic means.

There is no explicit right to withdraw the consent available under the LPPD; however, the interpretations of various provisions suggest that data subjects have the right to withdraw their consent to the processing of their personal data whenever they desire.

Under LPPD, data subjects have the right to be informed regarding their right to object to the processing.

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Articles 7, 18, 21

GDPR provides data subjects with the right to object and withdraw consent to personal data processing. Data subjects have the right to object to the processing of their personal data. This can be done based on legitimate interest or public interest.

Once this right is exercised, the controller must stop processing the individual's data unless it demonstrates grounds that override the data subject's request.

Article 11

LPPD states that data subjects have the right to learn and know whether the personal data relating to themselves is being processed.

In general, data controllers must provide the following information while responding to data subject requests;

  • information related to the data controller or its representative;
  • name, ID number (if the applicant is a Turkish citizen), nationality, passport number, or ID number (if the applicant is a foreigner);
  • notification address, e-mail address if any, phone and fax number of the applicant; the subject of the request;
  • the data controller's explanations regarding the request.

A data controller may refuse a data subject's request with justified grounds. However, the LPPD is silent on the definition of justified grounds.

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Articles 15 Recitals 59 - 64

GDPR states that, when responding to an access request, a data controller must indicate the following:

  • The categories of personal data concerned
  • The recipients or categories of recipients to whom personal data has been disclosed
  • The retention period
  • The right to file a complaint to the supervisory authority
  • The existence of data transfers
  • The existence of automated decision making

The information must be provided without undue delay and in any event within one month of the request’s receipt.

No Article

LPPD does not provide the right to data portability.

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Articles 12, 20, 28 Recitals 68, 73

GDPR defines the right to data portability as the right to send data in a “structured, commonly used, and machine-readable format.” This right may be exercised only when it is technically feasible to do so.

Article 11

Under LPPD,data subjects have the right to apply to the data controller to request the rectification of incomplete or inaccurate data.

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Article 16

This is the data subject’s right to obtain from the controller the rectification of inaccurate personal data and to have incomplete personal data completed.

This right has close links to the accuracy principle of GDPR (Article 5(1)(d)).

No Article

Not Applicable

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Article 18

This right applies when the data subject contests data accuracy, the processing is unlawful, and the data subject opposes erasure and requests restriction. The controller must inform data subjects before any such restriction is lifted.

No Article

Not Applicable

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Articles 22

GDPR provides data subjects the right not to be subject to a decision based solely on automated processing, including profiling, that produces legal effects or similarly significantly affects them.


Data Protection Officer Requirement

GDPR prescribes that data controllers and data processors, including their representatives, must appoint a DPO, whereas there is no such requirement under LPPD.


Data Processing Record Requirements

Articles 16

Under LPPD, natural persons or legal persons who process personal data must enroll in the Data Registry of Controllers before taking any steps to process personal data. Application for registering must be made with a notification containing the following essentials:

  • Identity and address of the controller and their representative
  • Purposes for which personal data will be processed
  • Explanations about the group of personal data subjects as well as about the data categories belonging to them
  • Recipients or groups of recipients to whom the personal data may be transferred
  • Personal data which is envisaged to be transferred abroad
  • Measures were taken for the security of personal data
  • The maximum time required for the processing of personal data

VERBIS registration should be made via the VERBIS online portal.

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Articles 30 Recitals 82

Data controllers and data processors must maintain a record of processing activities.

GDPR prescribes a list of information that a data controller must record:

  • Name and contact details of the data controller;
  • Purposes of the processing;
  • A description of the categories of personal data;
  • Categories of recipients to whom the personal data will be disclosed;
  • Estimated period for the erasure of the categories of data; and
  • A general description of the technical and organizational security measures that have been adopted.

The processing information recorded by a data controller or processor shall be in writing or electronic form.


Data Transfers Requirements

Articles 5(2), 6(3), 8, 9

According to Article 8 of LPPD, personal data can only be transferred with the data subject's explicit consent to transfer personal data inside Turkey. To transfer the personal data without the data subject's explicit consent, LPPD stipulates the same conditions as mentioned in Article 5(2) and 6(3) of the LPPD for processing personal data.

Under Article 9 of LPPD, cross-border transfer of personal data may take place once one of the following conditions is met:

  • Explicit consent of the data subject
  • Personal data may also be transferred abroad if one of the following conditions is established:
    • Approved country by the Board as "Adequate Country" along with the existence of conditions mentioned in Article 5(2) and 6(3) of LPPD.
    • An adequate country must have a sufficient level of protection.
    • If there is no adequate level of protection, then data controllers in Turkey and abroad shall commit, in writing, to provide an adequate level of protection abroad, as well as agree on the fact that the transfer is permitted by the Board of KVKK.
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Articles 44-50 Recitals 101, 112

GDPR states that personal data shall be transferred to a third country or international organization with an adequate protection level as determined by the EU Commission.

Suppose there is no decision on an adequate protection level. In that case, a transfer is only permitted when the data controller or data processor provides appropriate safeguards that ensure data subject' rights.

Appropriate safeguards include:

  • BCRs with specific requirements (e.g., a legal basis for processing, a retention period, and complaint procedures);
  • standard data protection clauses adopted by the EU Commission or by a supervisory authority;
  • an approved code of conduct; or
  • an approved certification mechanism.

Enforcement

Regarding enforcement,LPPD imposes both criminal and non-criminal penalties, whereas the GDPR only provides administrative penalties for non-compliance.

Articles 17, 18

Criminal Penalty

LPPD states that Article 135-140 of Turkish Penal Code No. 5237 of 26/9/2004 shall apply in terms of crimes concerning the personal data which can be subject to imprisonment.

Fines

Under Article 18 of LPPD, the Personal Data Protection Board can impose administrative penalties up to TRY 1.000.000 for each incidence of non-compliance. Following non-compliance with the data protection laws can result in:

  • Fine for non-compliance with the information notice requirements
  • Fine for non-compliance with the data security obligations
  • Fine for non-compliance with Data Protection Authority orders/decisions
  • Fine for non-compliance with the Data Controllers' Registry requirements
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Articles 83, 84 Recitals 158, 149

GDPR has an upper cap on their monetary penalties, either: 2% of global annual turnover or €10 million, whichever is higher, or 4% of global annual turnover or €20 million, whichever is higher. This depends on the level of violation, which is decided by the member states and public authorities.


Security Measures and Data Breaches

Both GDPR and LPPD obligate controllers and processors to adopt security measures to protect the personal data they are processing.

Articles 12
The Board Decision No. 2019/10 ('the Decision') Guidance on Data Protection (technical and organizational measures)

The controller must take all necessary organizational and technical measures to fulfill the obligation stated under LPPD. Turkey has issued a Personal Data Security Guide to clarify the technical and organizational measures for the secure processing of personal data.

Under Article 12 of LPPD, the Data controller’s responsibility is to ensure personal data retention, prevent unlawful processing of personal data, and prevent illegal access to personal data.

In cases where other persons unlawfully collect the processed personal data, the data controller shall notify the same to the data subject and the Board of the KVKK within the shortest time.

As per the Decision, the data controller must notify the Board of the KVKK without delay and not later than 72 hours after becoming aware of any data breach.

Under the LPPD, there are no exemptions to the obligation to notify the unlawful collection of personal data to the Board of the KVKK and the data subject.

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Articles 5, 24, 32-34 Recitals 74-77, 83-88

The GDPR requires organizations to take appropriate technical and organizational measures to ensure personal information processing security. These measures may include the following:

  • Encryption and pseudonymization of personal data
  • Ensuring integrity, confidentiality, and availability of processing systems
  • Restoring the availability and access to personal data promptly.
  • Assessing and evaluating the effectiveness of technical and organizational measures.

Under GDPR, organizations must notify supervisory authorities of any personal data breach that is likely to result in a risk to natural persons’ rights and freedoms without undue delay and not later than 72 hours after becoming aware of the breach. The information may also be provided in phases, and a justification must accompany any delay. The communication of the breach to data subjects, however, must take place without undue delay.

 


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