The 10 Most Frequently Asked Questions About Personal Data Protection Lawyers in Antalya

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In our increasingly digital world, the protection of personal data becomes increasingly critical. Compliance with the provisions of Law No. 6698 on the Protection of Personal Data (KVKK) is crucial, especially for businesses and individuals operating in a dynamic business and tourism hub like Antalya. KVKK aims to protect fundamental rights and freedoms, particularly the right to privacy, in the processing of personal data. However, within this complex legal framework, violations can sometimes occur unknowingly or due to a lack of knowledge. In this article, we aim to raise awareness and provide guidance on preventing potential violations by addressing the most frequently asked questions about KVKK violations by IT lawyers.

What is KVKK and Why is it Important?

The KVKK is a fundamental legal document governing the processing, storage, transfer, and destruction of personal data. The law ensures that personal data is processed lawfully, safeguarding individuals’ privacy and control over their data. For businesses, compliance with the KVKK is not only a legal obligation but also plays a vital role in reputation management and building customer trust. Violating the KVKK can result in significant administrative fines, as well as legal and criminal liability. Therefore, understanding and applying the law’s fundamental principles is essential for every data controller.

The Most Frequently Asked Questions About KVKK Violation to IT Lawyers

1. What Exactly Does a Personal Data Breach Mean?

A personal data breach refers to situations where personal data processed is unlawfully obtained by third parties, stolen, lost, destroyed, altered, or accessed without authorization. This can occur as a result of a deliberate cyberattack, or it can also include accidental deletion or disclosure to unauthorized parties due to employee error. In short, it is a breach of data security and the compromise of the confidentiality, integrity, or accessibility of personal data.

2. Who is the Data Controller and the Data Processor? What is the Difference in Liability for Violations?

Data Controller: The natural or legal person responsible for determining the purposes and methods of processing personal data and for establishing and managing the data recording system. For example, a company’s board of directors or a tradesman.

Data Processor: A natural or legal person who processes personal data on behalf of the data controller based on the authority granted by the data controller. For example, an accounting firm or cloud storage service provider from which a company receives payroll services.

The primary responsibility for breaches lies with the data controller. The data processor is obligated to act in accordance with the data controller’s instructions and is generally contractually liable to the data controller. However, if the data processor causes a breach through its own fault, its own liability may also arise. The data controller is obligated to provide the necessary oversight and contractual safeguards in its relationship with the data processor.

3. What is a Violation of the Disclosure Obligation and How Can It Be Prevented?

The obligation to inform is the data controller’s duty to inform natural persons (data subjects) whose personal data is being processed about who will process it, for what purposes, to whom and for what purposes it may be transferred, the collection method, the legal basis, and the data subject’s rights. Failure to fulfill this obligation, or incomplete fulfillment, constitutes a violation.

To prevent this, businesses need to create a transparent privacy policy, publish clear and understandable disclosure texts on their websites and other communication channels, provide relevant information at the time of data collection (e.g. when filling out forms), and update these texts regularly.

4. Is Processing Data Without Obtaining Explicit Consent a Violation? In What Cases Is Consent Not Required?

As a rule, the data subject’s explicit consent is required for the processing of personal data. This consent is based on informed consent and is given freely on a specific matter. Processing data without explicit consent is unlawful and constitutes a serious violation.

However, the KVKK allows the processing of personal data without explicit consent in some cases. These exceptions include:
* It is clearly provided for in the laws.
* If it is necessary for the protection of the life or physical integrity of a person who is unable to give his consent due to a physical impossibility or whose consent is not legally valid, or of someone else.
* The processing of personal data of the parties to a contract is necessary, provided that it is directly related to the establishment or performance of a contract.
* It is mandatory for the data controller to fulfill its legal obligations.
* It has been made public by the relevant person himself.
* Data processing is necessary for the establishment, exercise or protection of a right.
* Data processing is necessary for the legitimate interests of the data controller, provided that it does not harm the fundamental rights and freedoms of the person concerned.

5. What are the Obligations of the Data Controller in Case of a Data Security Breach?

When a personal data breach occurs, the data controller is obliged to act quickly and fulfill certain obligations:
* Notification to the Board: Reporting the violation to the Personal Data Protection Board (Board) within 72 hours at the latest from the date of learning about it.
* Notification to Data Subjects: Notification to personal data subjects affected by the breach by appropriate means. This notification must include the nature of the breach, potential consequences, measures taken, and contact information.
* Record Keeping: Recording all details regarding the breach (date of breach, type, affected data groups, measures taken, etc.) and presenting them to the Board upon request.
* Preventive and Remedial Measures: To take all necessary administrative and technical measures to prevent the violation from recurring.

6. What are the Common Violations in the Processing of Employee Data under the KVKK?

Employee personal data covers a wide range of areas, including sensitive data frequently processed in business. Common breaches include:
* Excessive Data Collection: Collection of personal data that is not required or related to the purpose.
* Lack of Information and Consent: Failure to provide sufficient information to employees about data processing activities or failure to obtain their explicit consent where necessary (e.g., performance monitoring, camera recording).
* Security Weaknesses: Inadequate protection of HR files or digital systems containing employee data.
* Unauthorized Sharing: Sharing employee data with third parties or other employees without a job requirement.
* Storage after Termination of Employment Contract: Data of employees whose employment contracts have been terminated are not destroyed even though the legal retention periods have expired.

7. How Does a Personal Data Protection Law Violation Occur in Marketing and Advertising Activities?

Marketing and advertising activities are areas that directly require the processing of personal data and therefore may be vulnerable to KVKK violations:
* Unauthorized Commercial Electronic Message Sending: Sending marketing messages via SMS, email, or call without the data subject’s prior consent (usually “commercial electronic message consent” in electronic communications). This is also a violation of the Electronic Commerce Regulation Law (ETK).
* Profiling and Targeting: Providing personalized advertisements through detailed profiling without the explicit consent of the data owner or without considering the balance of legitimate interests.
* Database Sale/Sharing: Sharing or selling collected customer or potential customer data with third party companies without the consent of the data owner.
* Lack of Cookie Policy: Lack of a clear and understandable cookie policy regarding the use of cookies on websites or lack of consent from the user.

8. What are the Errors and Violations Made in Data Transfer Abroad?

The transfer of personal data abroad is subject to strict conditions under the KVKK, and errors made in this area can lead to serious violations:
* Transfer to Countries Without Sufficient Protection: Transferring data to a country that is not declared to have sufficient protection by the Personal Data Protection Board, without the explicit consent of the data owner or without providing sufficient safeguards.
* Lack of Explicit Consent: Transfer of data abroad without the explicit consent of the data owner or without the exceptional circumstances specified in the Law.
* Lack of Commitment: Data controllers fail to provide a written commitment or obtain permission from the Board for data transfer in countries where there is insufficient protection.
* Use of Cloud Services: When using cloud storage or software services based abroad, the conditions for transferring data abroad are ignored.

9. What are the Administrative Fines Imposed as a Result of Personal Data Breach?

Data controllers who violate the KVKK are subject to various administrative fines pursuant to Article 18 of the Law. While the amount of these fines varies depending on the type and severity of the violation, they can reach quite substantial amounts. For example:
* Fines from 13,390 TL to 267,890 TL for those who violate the obligation to inform,
* From 40,183 TL to 2,678,966 TL for those who do not fulfill their obligations regarding data security,
* Administrative fines ranging from 66,974 TL to 13,394,881 TL may be imposed on those who do not comply with the Board decisions.

These amounts are updated annually based on the revaluation rate. The amount of the penalty is determined by factors such as the nature of the breach, the size of the data controller, the number of affected individuals, the damage caused by the breach, and the level of cooperation.

10. How Do I Know If I Have Experienced a Data Breach and What Should I Do?

Understanding that a data breach has occurred can often come from unusual activity in systems, security alerts, complaints from employees or customers, cybersecurity investigations, or even external sources (e.g., media reports).

In case of suspicion or certainty that a data breach has occurred, the following should be done:
* Verify and Contain the Breach: Work to determine the scope and source of the breach. Prevent further spread by isolating the affected systems or data.
* Preserve Evidence: Securely store all digital and physical evidence related to the breach. This is critical for investigations and legal processes.
* Get Legal Advice: Get immediate legal support from an expert IT lawyer. Taking the right steps regarding notification processes and legal obligations is crucial.
* Fulfill Notification Obligations: When necessary, notify the KVKK Board and data owners within the legal period.
* Take Remedial Actions: Address the security vulnerabilities that led to the breach and harden your systems.
* Crisis Communication Management: Determine a transparent and accurate communication strategy with the public and stakeholders.

Conclusion

Personal data protection is not only a legal obligation in today’s business world, but also a critical element that underpins corporate reputation and customer trust. Businesses of all sizes operating in Antalya must comply with the provisions of the Personal Data Protection Law (KVKK) and take proactive steps to prevent potential violations. While the frequently asked questions discussed in this article shed light on common issues data controllers may encounter, it’s important to remember that each case has its own unique circumstances. Given the complexity of the KVKK processes and the rapidly changing digital environment, seeking support from a legal consultant specialized in personal data security and legal compliance is the most reliable way to minimize potential risks and fully fulfill legal obligations.