New Era in the Protection of Personal Data (2014-08-05)

Turkish Constitutional Court (TCC) held in its decision numbered E.2013/122-K.2014/74 and dated 09.04.2014 that Article 51 of the Electronic Communications Act no. 5809 is in violation of Article 20 of the Turkish Constitution and annulled that article.

Article 51 of the Act no. 5809 bestowed the Information and Communications Technologies Authority (ICTA) with the power to regulate issues regarding the protection of personal data. Relying on Article 51, the Board had issued the Regulation Concerning the Processing of Personal Data and the Protection of Privacy in the Electronic Communications Sector that was published on the Official Gazette dated 24.07.2014 and numbered 28363. Once the decision of the TCC comes into effect, this Regulation will also be annulled.

Article 20 of the Turkish Constitution provides that the procedures and principles regarding the protection of personal data shall be established by law. TCC held that the provision, which authorizes ICTA to determine these procedures and principles, violates the Constitution. TCC was aware of the fact that annulling Article 51 of the Act no. 5809 would lead to a significant problems as there would be no rules to regulate protection of personal data. Hence TCC decided that its decision shall come into effect 6 months after it is published in the Official Gazette. The legislator should issue a new act within this timeframe. It is possible to issue an act that determines the legal framework for the protection of personal data and authorizes ICTA to enforce that act. In such a scenario, ICTA would be able to issue new secondary legislation to in accordance with the procedures and principles set forth in the new law.

Decision of TCC has been published in the Official Gazette numbered 29072 and dated 26.07.2014 and thus the 6-month-period has begun. It is highly probable that a new era in the protection of personal data will begin in the following 6 months.

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