Data flows like electricity across Turkish borders

Picture this: You're a Turkish business owner, confidently sending customer data abroad, when suddenly—bam!—new laws throw a wrench in your operations. Welcome to 2024, where Turkey's data protection rules are getting a major facelift. But don't panic! This isn't just another dry legal update. We're diving into the nitty-gritty of cross-border data transfers, revealing insider tips most websites won't tell you. From clever workarounds to potential pitfalls, we've got you covered. Whether you're a tech giant or a small startup, buckle up—you're about to become a data transfer pro. Ready to turn this legal maze into your competitive advantage? Let's dive in.

1. Overview of Turkey's Updated Data Protection Framework

Key Changes in the 2024 Amendment to Law No. 6698

Turkey's data protection landscape is evolving, with significant changes coming in 2024. The amendment to Law No. 6698 introduces stricter rules for cross-border data transfers, aligning Turkey more closely with international standards. Key changes include:

A new adequacy assessment process for countries receiving data
Introduction of appropriate safeguards for transfers to non-adequate countries
Expanded role for the Turkish Data Protection Board in overseeing transfers

These changes aim to enhance data protection while facilitating legitimate international data flows. For businesses operating in Turkey, understanding these updates is crucial to avoid potential penalties and maintain smooth operations.

Timeline for Implementation of New Cross-Border Transfer Rules

The new cross-border transfer rules are set to take effect on September 1, 2024. However, there's a transition period to help businesses adapt:

Until September 1, 2024: Both the old and new versions of Article 9 will apply
From September 1, 2024: Only the new rules will be in force

This phased approach gives companies time to review their data transfer practices and implement necessary changes. It's wise to start preparing early, as updating policies and contracts can take time. Remember, being proactive about compliance can save you headaches down the road!

2. Cross-Border Data Transfer Requirements Under the New Regime

Requirement	Description	Key Consideration
Adequacy Decision	Transfer to countries/sectors deemed adequate by the Board	Monitor Board's adequacy decisions for approved destinations
Appropriate Safeguards	Use of approved mechanisms like SCCs or BCRs	Notify Board within 5 days of signing SCCs
Explicit Consent	Transfer based on data subject's informed consent	Ensure consent is freely given, specific, and documented
Contractual Necessity	Transfer necessary for contract execution	Must be strictly necessary, not just convenient
Legitimate Interests	Transfer serves legitimate business interests	Conduct and document a balancing test
Data Transfer Impact Assessment	Evaluate risks of cross-border transfers	Implement appropriate safeguards based on assessment

Conditions for Lawful International Data Transfers

Under the new rules, lawful international data transfers must meet one of these conditions:

Transfer to a country or sector deemed adequate by the Board
Appropriate safeguards in place (e.g., standard contractual clauses)
Specific exceptions apply (e.g., explicit consent, contractual necessity)

The key here is documenting your transfer basis. For example, if you're relying on standard contractual clauses, make sure they're properly implemented and signed. This documentation can be crucial if the Board ever questions your transfers.

The Role of the Turkish Data Protection Board in Assessing Adequacy

The Turkish Data Protection Board now plays a central role in determining which countries offer adequate data protection. They'll consider factors like:

Reciprocity between Turkey and the receiving country
The receiving country's data protection laws and enforcement
Membership in international data protection agreements

This process aims to ensure Turkish citizens' data is protected when sent abroad. For businesses, it means keeping an eye on the Board's adequacy decisions, as they'll directly impact where you can freely transfer data.

Appropriate Safeguards for Transfers to Non-Adequate Countries

When transferring data to countries without an adequacy decision, you'll need to implement appropriate safeguards. These can include:

Standard contractual clauses approved by the Board
Binding corporate rules for multinational companies
Ad hoc transfer agreements approved by the Board

The introduction of standard contractual clauses is particularly exciting, as it provides a more straightforward option for many businesses. Just remember, you'll need to notify the Board within five business days of signing these clauses. It's a small step that can save you from potential compliance issues later on.

3. Obtaining Data Protection Board Approval for Cross-Border Transfers

Constructing safeguards: **Turkey's new data protection** framework

Standard Contractual Clauses: A New Option for Turkish Businesses

Good news for Turkish businesses! The 2024 amendment introduces standard contractual clauses (SCCs) as a straightforward option for cross-border data transfers. These Board-approved clauses provide a template to ensure adequate protection when sending data to countries without an adequacy decision.

Here's what you need to know:

SCCs simplify the compliance process for many routine transfers.
You must notify the Board within 5 business days of signing SCCs.
While convenient, SCCs still require proper implementation and monitoring.

Pro tip: Start reviewing the Board's approved SCC templates early. This gives you time to understand how they'll fit into your existing contracts and processes.

Binding Corporate Rules for Multinational Companies

For multinational companies, Binding Corporate Rules (BCRs) offer a flexible solution for intra-group data transfers. BCRs are essentially a global privacy policy that your entire corporate family agrees to follow.

Key points:

BCRs must be approved by the Turkish Data Protection Board.
They allow for smoother data flows within your organization.
Developing BCRs can be time-consuming but provides long-term benefits.

Remember, while BCRs require initial investment, they can significantly streamline your international data operations once approved.

Ad Hoc Transfer Agreements: Process and Considerations

Sometimes, you might need a tailored solution for unique data transfers. That's where ad hoc transfer agreements come in. These are custom agreements you create and submit to the Board for approval.

Here's what to keep in mind:

Clearly outline the specific transfer's purpose, data types, and safeguards.
Be prepared for a potentially longer approval process compared to SCCs.
Consider legal expertise to ensure your agreement meets all requirements.

While more complex, ad hoc agreements can be invaluable for specialized transfers that don't fit neatly into other categories.

4. Exceptions to Cross-Border Transfer Restrictions

Data flows illuminate Turkey's digital crossroads, mirroring new transfer rules

Transfers Based on Explicit Consent

In some cases, you can bypass the need for adequacy decisions or safeguards by obtaining explicit consent from the data subject. However, tread carefully here.

Important considerations:

Consent must be freely given, specific, and informed.
Document the consent process meticulously.
Remember that consent can be withdrawn at any time.

For example, if you're a travel agency sending customer data to a hotel in a non-adequate country, you could obtain explicit consent during the booking process. Just ensure you clearly explain why you're transferring the data and to whom.

Contractual Necessity and Legitimate Interests

Sometimes, data transfers are necessary to fulfill a contract or serve legitimate interests. These exceptions can be helpful, but they're not a free pass.

Key points:

The transfer must be strictly necessary, not just convenient.
For legitimate interests, conduct and document a balancing test.
Be prepared to justify your use of these exceptions if questioned.

For instance, if you're an e-commerce company shipping products internationally, transferring customer addresses to your shipping partner could fall under contractual necessity.

Public Interest and Legal Claims Exceptions

The law also provides exceptions for transfers necessary in the public interest or for legal claims. While less common for most businesses, these can be crucial in specific situations.

Examples include:

Cooperating with international law enforcement (public interest)
Transferring data for a cross-border lawsuit (legal claims)
Complying with foreign tax regulations (public interest)

Remember, these exceptions should be used judiciously. Always document your reasoning thoroughly in case you need to defend your decision later.

5. Stay Ahead of the Game: Your 2024 Data Transfer Game Plan

Turkey's new data protection rules are coming, and savvy businesses are already gearing up. Whether you're using standard clauses, binding corporate rules, or custom agreements, the key is to start planning now. Remember, compliance isn't just about avoiding fines—it's about building trust with your customers and partners.

Need help navigating these changes? Atlas Legal Partners in Istanbul specializes in assisting foreigners with Turkish legal matters, including data protection. They can help you craft a strategy that keeps your data flowing smoothly across borders while staying on the right side of the law.

What's your biggest concern about the upcoming changes? Have you already started preparing? Share your thoughts—your experience could help others in the same boat!

Our Turkish Data Protection Lawyers

Attorney Name	Education	Membership	Languages
Taha S. Sahin	LLB, MBA	Istanbul Bar No:1 52671	English, Turkish
Saftar Guliyev	LLB, LLM	Istanbul Bar No:1 76338	Turkish, English, Russian
Asiye Bayturk	LLB, BS	Istanbul Bar No:2 1458	Turkish, English
Akif Dogan	LLB	Tekirdag Bar No: 1334	Turkish, English, German

2024 Turkish Data Protection Law Reshapes International Transfers: 5 Key Changes