The Turkish Data Protection Board (“Board”) has adopted a new resolution regarding advertising activities, published in the Official Gazette on 1 November 2018. The Board has announced that those who send advertising materials by emails, SMS or make marketing calls directed to data subjects, in a manner contrary to Law on The Protection of Personal Data numbered 6698 (“Law”), shall cease such activities.

As stated in the Board’s resolution, advertising activities of the controllers and processors without obtaining the express consent of the data subjects or fulfilling one of the conditions listed in Article 5 of the Law are considered to be against the Law. Furthermore, in case of the processing of personal data by a natural or legal person on behalf of the controller, the controller would be jointly responsible with these persons for taking necessary measures.

In this regard, the Board emphasized that those who fail to comply with obligations related to data security would be required to pay an administrative fine of 15.000 to 1.000.000 TL. In case, the processed data had also been unlawfully obtained, a criminal complaint would be filed with the Office of the Chief Public Prosecutor for initiating the necessary legal proceedings with regards to the crime of “Illegally Obtaining or Giving Data” under the Turkish Criminal Law.

It could be said that the resolution in question is in line with the GDPR practices and the recent decisions of the Information Commissioner’s Office (ICO) on nuisance calls and messages. However, the Board has remained silent concerning possible legal basis of the data processing activities other than explicit consent (eg legitimate interests) within the scope of marketing communications. Furthermore, this resolution does not contain enough information to assess the compliance of the Law with the obligations arising from electronic communications provisions.

It should be also noted that the Board shall only adopt and publish resolutions pursuant to the article 15 (6) of the Law, if the infringement is widespread. The Board may also refer to the opinions of related institutions and organisations, if needed.