In today’s digital age, the protection of personal data is of vital importance for both the fundamental rights of individuals and the reputation and legal obligations of companies. In Türkiye, Personal Data Protection Law No. 6698 regulates the processing and protection of personal data, imposing significant responsibilities on data controllers. Chief among these responsibilities is the notification required in the event of a potential data breach. A data breach is not only a legal obligation but also a manifestation of the data controller’s understanding of transparency and responsibility. In this article, we will examine in detail how to notify a data breach under the KVKK, the stages of the process, and the legal aspects of the issue in light of recent court decisions.
What is a Data Breach under KVKK?
According to the Personal Data Protection Law (KVKK), a data breach refers to the unlawful acquisition, alteration, deletion, disclosure, or inaccessibility of processed personal data. These situations can occur accidentally or intentionally and compromise the confidentiality, integrity, or accessibility of personal data. Data breaches can occur through various means, including cyberattacks, malware, system errors, human errors, or physical security breaches.
Factors That Trigger a Data Breach
A data breach doesn’t necessarily require an external attack. For example, an employee accidentally emailing personal data to a third party, a database being misconfigured and exposed, or a stolen laptop are all considered data breaches. The crucial factor is the unauthorized acquisition or access of personal data. Breaching sensitive personal data (such as health, sexual life, or union membership) can have more severe consequences.
Data Controller’s Obligations in Case of Data Breach
Article 12 of the KVKK and the “Data Breach Notification Guide” and “Data Breach Notification Form” published by the Personal Data Protection Authority (KVKK) clearly outline the obligations data controllers must fulfill in the event of a data breach. These obligations can be grouped under two main headings: notification to the KVKK Authority and notification to relevant individuals.
Violation Detection and Evaluation Process
When a data breach is discovered, the first step a data controller must take is to quickly determine the scope, nature, and impact of the breach. This process requires a detailed assessment of the source of the breach, the types of data affected, the number of individuals affected, and the potential risks to personal data. This assessment is critical for determining whether a notification obligation arises and the content of the notification.
Notification Obligation to the Personal Data Protection Authority
According to the KVKK, the data controller is obligated to notify the Personal Data Protection Board (Board) as soon as possible if processed personal data is obtained by others through unlawful means. According to the guidance published by the Board, this notification must be made within 72 hours of learning of the breach. The notification must be made by fully completing the “Data Breach Notification Form” published on the Authority’s website. This form must include information such as the date of the breach, how it was detected, the types of data affected, the approximate number of people, the potential consequences of the breach, and the measures the data controller has taken or plans to take.
Obligation to Notify Relevant Persons
If a data breach poses a risk of adverse consequences for the rights and freedoms of data subjects, the data controller must also notify the data subjects. Notification to the data subjects must be made promptly and in understandable language. This notification must include information on how the breach occurred, which personal data was affected, the potential consequences of the breach, and the measures necessary to protect the data subjects’ rights. Notification methods may include email, SMS, website announcements, or direct mail.
Stages of the Data Breach Notification Process
Data breach notification is more than just filling out a form; it’s part of an integrated incident management process.
Incident Management and First Response
Once a breach is detected, the data controller must first contain the breach and prevent it from spreading. This phase is carried out in collaboration with cybersecurity teams and legal advisors. Identifying the source of the breach, isolating systems, and minimizing potential damage are the key steps in this process.
Collection and Analysis of Evidence
To fully understand the details of the breach and prevent similar incidents in the future, it is crucial to collect complete evidence and conduct digital forensic investigations. This evidence will be crucial for reporting to the Personal Data Protection Authority and any potential legal proceedings.
Preparation and Submission of the Notification Form
In light of all the information collected, the “Data Breach Notification Form” published by the Personal Data Protection Authority (KVK) must be completed meticulously. Answering each question on the form completely and accurately is critical to the smooth progress of the process. The form is submitted via the method specified by the Authority (usually electronically).
Post-Process and Preventive Measures
The data controller’s responsibility does not end after notification. To prevent a recurrence of the breach, proactive steps should be taken, such as reviewing security measures, addressing deficiencies, conducting employee awareness training, and improving data processing processes. Following notification, the institution may request additional information or documentation and audit the data controller’s actions.
Current Court Decisions and Their Reflection in Practice
Since the enactment of the KVKK, numerous administrative fines have been issued related to data breach notification obligations, and these decisions have been subject to judicial review. Courts generally support the Board’s approach to data breach notification, specifically considering failure to comply with the 72-hour notification period a serious violation.
Court decisions emphasize that the notification obligation must be fulfilled regardless of the extent of the breach. The data controller’s diligence in taking action as soon as they learn of a breach and making the necessary assessments and notification can be considered advantageous in judicial proceedings. For example, some decisions examine in detail whether the delay in notifying the data controller of a breach was justified. The length of technical investigations is not always considered a valid excuse for delay; the data controller is expected to have the sufficient technical and administrative infrastructure to expedite the breach detection and assessment processes.
Furthermore, courts closely monitor the data controller’s obligation to inform data subjects. The content, clarity, and timeliness of notifications made to data subjects are considered indicators of whether the data controller complies with the principle of transparency. In lawsuits challenging administrative fines, courts generally find the Personal Data Protection Authority’s administrative fines justified if the data controller’s response to the breach was inadequate or if they breached their notification obligation. This situation further underscores the importance of data controllers taking their obligations in this regard very seriously.
Important Tips and Legal Advice for Data Controllers
The data breach notification process involves complex legal and technical details. Proper management of this process can protect data controllers from significant administrative fines and reputational damage.
* Proactive Measures: Strong cybersecurity systems, regular security audits, and the establishment of data security policies are essential to prevent data breaches.
* Breach Response Plan: Every data controller must have a detailed “data breach response plan” that outlines how to proceed in the event of a potential data breach. This plan should include all steps, from breach detection to notification and subsequent remediation processes.
* Training and Awareness: Regular training of employees on personal data protection and data security plays a critical role in preventing breaches caused by human errors.
* Legal Consultation: In the event of a data breach, it is crucial to seek support from a legally competent law firm to ensure the process is managed legally, notifications are made in a complete and timely manner, and potential legal risks are minimized. Legal consultancy is particularly essential in assessing the scope of the breach, accurately completing the notification form, and ensuring the legal compliance of notifications to relevant parties.
According to the KVKK, data breach notification is not only a legal obligation for data controllers but also a demonstration of corporate responsibility and transparency. Reporting a breach at the right time, accurately, and to the right authorities not only reduces legal risks but also protects the data controller’s reputation. Therefore, every data controller must exercise utmost care in this process and not hesitate to seek professional legal support when necessary. In today’s world, where data breaches are rapidly increasing, fully fulfilling these obligations is key not only to compliance but also to a sustainable business model.