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Turkish Data Protection Authority (“DPA”) published an announcement in October 26, 2020 regarding cross-border data transfers. The purpose of the announcement seems to be providing a general response and the Turkish DPA’s views to the criticism and feedback received from private sector and academic institutions regarding the difficulties in cross-border data transfers.

Turkish Constitutional Court granted a decision (“Decision”) on September 17, 2020 regarding an applicant’s claims on violation of right to request protection of personal data under right to privacy and freedom of communication due to inspection of correspondences on corporate e-mail account and termination of employment contract on the grounds of these correspondences.

The Turkish Competition Authority (“TCA”) recently published its Guidelines on Examination of Digital Data during On-site Inspections (“Guidelines”), which set forth the general principles with respect to the examination, processing and storage of data and documents held in the electronic media and information systems, during the on-site inspections to be conducted by the TCA. According to the recitals of the Guidelines, the TCA deemed that it was necessary to determine and set out these relevant principles, in light of the recent amendment to Article 15 (“On-Site Inspections”) of the Law No. 4054 on the Protection of Competition (“Law No. 4054”).

The Turkish Competition Board’s (“Board”) Yozgat Ready Mixed Cement decision (“Decision”) was published on September 7, 2020. The Board concluded that certain ready mixed concrete producers operating in Yozgat province of Turkey entered into a cartel agreement by way of forming two legal entities (namely, Güven Beton and Sorgun Emek Beton) for the purposes of coordinating the sales they make to customers via collectively determining prices and allocating customers. The Board decided that this amounted to a violation of Article 4 of the Law No. 4054 on the Protection of Competition (“Law No. 4054”) and imposed administrative fines amounting to 1.2% of the turnovers of the investigated parties.

The Court of Justice of the European Union (“CJEU”), in its recent decision with regard to the two joint cases (C‑807/18 and C‑39/19) brought before it for preliminary ruling, addressed how incompatibility with net neutrality shall be assessed under the relevant legislation regarding open internet access. In order to analyse this decision, we will first explain what net neutrality is and briefly discuss its possible links with the competition law. We will then move on to the relevant legislation surrounding the net neutrality. Lastly, we will discuss the aforementioned preliminary ruling of the CJEU and conclude.

ICTA’s Procedures and Principles on Social Network Provider (“Procedures”) were published on the Official Gazette on October 2, 2020. The Procedures provide the detailed framework for the obligations of “social network providers”, a new concept that was introduced at the end of July by the Amendment Law on the Law No. 5651 on Regulation of Broadcasts via Internet and Prevention of Crimes Committed Through Such Broadcasts (“Amendment Law”).

A recent law proposal which provides significant changes to the Law on Regulation of Broadcasts via Internet and Prevention of Crimes Committed through Such Broadcasts ("Law No. 5651") has been published on Grand National Assembly of Turkey's ("TBMM") website yesterday ("Proposal"). The Proposal mainly introduces obligations on social network providers with over 1 million daily access from Turkey.

After rounds of revisions and failed attempts of enactment over a span of several years, the proposal for an amendment to the Law No. 4054 on Protection of Competition (“Law no. 4054”) (“Amendment Proposal”) has finally been approved by the Turkish parliament, namely the Grand National Assembly of Turkey, yesterday.

I can pinpoint the exact moment when my interest in the law first flourished: I was 13 years old and my mother had given me a book called The Courage of their Convictions by Peter H. Irons, about 16 Americans who had fought for their rights and taken their cases all the way to the Supreme Court, and what I read resonated deeply within me. It later turned out that my mother had only given me the book to improve my English. But it opened the door to so much more.

The General Directorate of Domestic Trade of the Ministry of Trade (the “General Directorate”) has issued an official statement on March 20, 2020 (“Statement”) in order to adopt certain measures to ease the process of holding general assembly meetings of joint stock and limited liability companies (together, the “Companies”) in the light of ongoing concerns about the novel coronavirus (COVID-19) outbreak across the country.

In May, 2019, the Agency had announced the Draft Regulation on Sales, Advertising and Promotion of Medical Devices, expected to replace the Regulation on Sales, Advertising and Promotion of Medical Devices (“Regulation”), by expressing that the Regulation required an amendment as a result of practical matters presented during the implementation of the Regulation and the current needs of the sector. The draft regulation was not enacted to this date, and instead, on January 28, 2020, the Agency announced the Draft Amendment Regulation on Sales, Advertising and Promotion of Medical Devices (“Amendment Regulation”)1 which will amend the Regulation itself. The Agency has invited comments from concerned parties until February 3, 2020.

ELIG Gürkaynak Attorneys-at-Law, acting as outside counsel for Wikimedia Foundation, Inc. (“Wikimedia”), has secured an affirmative decision from the Turkish Constitutional Court in the matter of an universal access ban on the Wikipedia website (www.wikipedia.org) in Turkey.

The authority to initiate dumping or subsidy examinations, upon complaint or, where necessary, ex officio, has been given from the Ministry of Economy to the Ministry of Trade (“Ministry”). Within the scope of this authority, the Ministry announces its decisions with the communiqués published on the Official Gazette.

Turkish Constitutional Court recently granted two remarkable decisions on November 19, 2019 and on November 28, 2019 regarding individual applications claiming violation of the applicants’ freedom of expression. The decisions have been published in the Official Gazette respectively on December 24, 2019 and on January 3, 2020. In both decisions, the Constitutional Court accepted the applicants’ violation claims by concluding that the contents posted by the applicants on social media are in the acceptable limits of freedom of expression and the applicants’ freedoms of expression are violated.

Recent amendments to the Turkish legislation regarding electronic marketing communications introduced a centralized management system for obtaining, exercising and tracking the opt-in/opt-out requests as well as complaints of the recipients of electronic commercial communications. Service providers sending electronic commercial communications to customers will need to register with this new centralized management system, and notify and/or process opt-in and opt-out requests and complaints regarding electronic commercial communications through this centralized management system.

Dismissal of the board members of a joint stock company is regulated under the Turkish Commercial Code numbered 6102 (“TCC”).  According to Article 408/2 of the TCC, general assembly of shareholders is granted with the sole power to appoint and dismiss board members. The scope and implementation of such power is defined under Article 364 of the TCC. Pursuant to such article, board members can be dismissed through including an item in the agenda of the general assembly meeting of shareholders for dismissal or with just cause even if the dismissal is not in the agenda of the general assembly meeting of shareholders.

I. Data breach under Turkish laws: There is no specific definition of “data breach” under the Turkish data protection law (“Turkish DP Law”). However in terms of notification obligations, “illegal seizure of or access to personal data” is considered as a data breach. Under the Turkish DP Law in case of a data breach (illegal seizure of or access to personal data), the data controller is obliged to notify the breach to (i) the data subjects (affected individuals) and (ii) the Turkish Personal Data Protection Authority (“Turkish DPA”), within the shortest time (“shortest time” applies to both notifications). There is no distinction as to eligibility of the data breach for notification and there are no exceptions provided under the legislation for the breach notification.

ELIG Gürkaynak Attorneys-at-Law

ELIG Gürkaynak Attorneys-at-Law is an eminent, independent Turkish law firm based in Istanbul. The firm was founded in 2005. 

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