Examination of KVKK in terms of Criminal Law

2022-02-16T18:05:47+00:00 17 March 2021|

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KVKK Criminal Law

As it is known, it is important to collect personal data for governments and private sector today. With the development of the information sector, many people can easily access these collected data. With the increase of social media platforms, people also allow easy access to their data. In this respect, the development of technology day by day is not only beneficial, it prepares an easy ground for those who pursue illegal purposes.

It is important that the state effectively protects the data that forms a part of private life. Therefore, 108 s. By ratifying the Council of Europe Convention in 2016, the protection of personal data has been included in our domestic law for the first time. But essentially; 5237 p. When the TCK entered into force on 1 June 2005; Although we ratified the international convention in 2016, the types of crimes related to the protection of personal data 108 p. It has been determined with reference to the Council of Europe Convention. When examined in terms of constitutional regulations; 82 stipulated in Article 20 of the Constitution, “Everyone has the right to demand respect for his private and family life. The privacy of private and family life cannot be touched.” The protection of personal data was included within the scope of constitutional rights with the 2010 amendment. Again, according to the regulation in Article 13 of the Constitution, personal data can only be processed by legal regulation. It cannot be arranged by the transactions of administrative units. In the constitutional regulation, it is stated that personal data can only be processed with the express consent of the person concerned or in the cases stipulated in the law. From the concept of explicit consent, consent given on the basis of information on a particular subject should be understood.

After drawing the general framework, as the basic law on personal data, which entered into force on 24.03.2016, 6698 p. KVKK has been accepted. It should be taken into account in explaining the regulations in other laws.

First of all, it is necessary to explain the concept of personal data. Personal data; It is the data of a certain or identifiable person related to the natural person. Sometimes an information may not make that person identifiable. For example; The first and last names used very extensively in Turkey can be considered in this regard. Of the person; Since TR identity number, address, telephone number make the person identifiable directly, personal data can be given as an example.

6698 p. According to KVKK; when processing personal data;

1- It must comply with the law and the rule of honesty

2- It must be accurate and up-to-date information

3- It should be processed for specific, clear and legitimate purposes

4- It should be limited and measured

5- After completing its purpose, it should be deleted. After all, deletion is also part of the protection.

In terms of Criminal Law:

It is aimed to protect personal data in the most effective way by determining the types of crimes related to personal data and binding them to sanctions. It is regulated in articles 135-136 and 138 of the TCK. According to these articles, saving and disseminating personal data and not deleting it after completing its purpose although it is recorded in accordance with the law is regulated as a crime. In terms of general provisions, these types of crimes are merely acts of action and no result is sought, and a crime occurs when the act is committed. The perpetrator and the victim can only be a real person. Since its negligent state is not regulated, it can only be processed deliberately. M. 135 and m. With the executive act in terms of 136, m. 138 in terms of negligence can be processed. It should also be noted that these crimes are not subject to complaints.

In addition to unlawful recording of personal data, dissemination of a data recorded in accordance with the law will also constitute this crime. From the concept of recording in accordance with the law, 6698 p. It is necessary to look at the regulation in Article 5 of the KVKK. According to the relevant regulation;

“1-Personal data cannot be processed without the express consent of the data subject.

2-In the presence of one of the following conditions, it is possible to process personal data without the explicit consent of the person concerned:

a) It is clearly stipulated in the laws.
b) If the person who is unable to disclose his consent due to actual impossibility or whose consent is not legally valid is compulsory for the protection of himself or someone else’s life or bodily integrity.
c) It is necessary to process personal data belonging to the parties of the contract, provided that it is directly related to the establishment or performance of a contract.
ç) It is mandatory for the data controller to fulfill his legal obligation.

ç) The person concerned has been made public by himself.

d) Data processing is mandatory for the establishment, use or protection of a right.
e) Provided that it does not harm the fundamental rights and freedoms of the data subject, it is mandatory to process data for the legitimate interests of the data controller. ”
For example, the issue of recording the voice of the person to be used in divorce proceedings is essentially 6698 p. It becomes applicable with the 5th article of KVKK mentioned above. As can be seen from the decisions of the Supreme Court, if, exceptionally, the person is unable to obtain evidence in any other way at that time, the protection of the right is considered as a legitimate defense and the recording of the relevant person has been deemed legal. However, courts should carefully examine these issues.

As a result; Although the protection of personal data is tried to be effectively provided in international law and our law, serious responsibilities fall on individuals.

Hunting. Sirin Gungor

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