Category: Turkiye

The Regulation on Processing and Protecting the Privacy of Personal Health Data (“Health Data Regulation”) has recently been published on the Official Gazette, on October 20, 2016 and came into force on the same date.

This regulation is not only applicable to the health institutions and the data subjects whose personal data is processed, but also covers real persons and legal entities who process health data within the scope of a legislation. Therefore, all companies processing health data for reasons such as employment procedures, periodic inspection or due to obligations arising from social security legislation will be subject to the provisions of the Health Data Regulation.

The purpose of the Health Data Regulation is to set out the procedures and principles to protect personal health data and to ensure its privacy, to regulate the provisions regarding the system which will be established to collect, process, transfer the personal health data and to access to such data and regarding the security and supervision of the systems in which the personal health data are recorded, and regarding notifications to the Ministry of Health (“Ministry”) on the employee movements during the provision of health services.

Most of these definitions are in line with the Turkish DP Law, and certain additional definitions are introduced, which are specifically defined for the Health Data Regulation, such as, the Ministry, the information security administrator, the general management, personal health record system, committee, central health data system, undersecretary, health service provider, and intervention team of cyber incidents. Under the Health Data Regulation, personal health data means any kind of health information relating to an identified or identifiable real person.

Health Data Regulation sets out principles for the protection, processing, transferring and erasure of personal health data. As per Article 6 of the Health Data Regulation, the data processor is obliged to protect the privacy of personal health data and obey the rules and standards of data protection and processing which will be determined by the Ministry. In case of a data breach, health service providers should notify the Ministry in the form prescribed under the same provision. Health service providers should take all the necessary measures which will be determined by the Ministry in order to protect the privacy of the personal health data. If there is a suspicion of a possible data breach a notification should be made to the Ministry and a pre-drafted form should be used to make this notification. The notification may also be submitted to the Ministry by electronic means. After an investigation regarding the personal health data breach, following the investigation carried out on the relevant breach, data subjects will be informed by the Commission of Personal Health Data which is established under the Ministry.

Personal health data can be processed without the data subject’s explicit consent; (i) to protect public health, (ii) to perform preventive medicine, medical diagnosis, treatment and nursing services and (iii) to manage and plan health services and financing; by the persons who are under confidentiality obligation (e.g. doctors) and by the authorized institutions and organizations.

Transfer of personal health data is regulated under Article 8 of the Health Data Regulation. The personal health data may be transferred; for preserving public health, performing preventive medicine, medical diagnosis, treatment and nursing services; managing and planning health services and financing by way of taking precautions which will be determined by the Data Protection Board, to the relevant institutions and organizations, if it is clearly regulated by laws. Additionally, data transfer in between the institutions and organizations which are requesting the data within the scope of their duties and responsibilities that are regulated by law and the Ministry along with the institutions and organizations under the Ministry would be regulated by a protocol prescribing the relevant measures for transfer of personal health data and other requirements. Moreover the requests for (i) transfer of personal health data abroad and (ii) any other transfer apart from the ones stated above will be governed by the Turkish DP Law and the Health Data Commission established under the Ministry shall evaluate these transfer requests. Therefore, it appears at this early stage that both the Board and the Health Data Commission will be in charge for personal health data.

Provisions for erasure of personal health data are also in line with the Turkish DP Law. In the event that the reasons for which the personal health data are processed are no longer valid, personal health data should be erased or anonymized by the data controller ex officio or upon the demand of the data subject, regardless of whether the personal data has been processed in accordance with the relevant legislation. In cases where there is an erasure request for a personal health data and if processing the data may be necessary for the establishment, exercise or defense of a legal claim, or if it is possible to use the data by law enforcement authorities, personal health data will be archived under a registry which will be established by the Ministry.

Finally, the Health Data Regulation fills the legal gap of how to protect personal health data, by regulating the abovementioned provision, along with other rules such as rights of the data subjects. Even though it refers to the Turkish DP Law in many of its provisions, the Health Data Regulation introduces a new regime on personal health data, in a more strict way.     

(First published in Mondaq on December 14, 2016)

By Gonenc Gurkaynak, Managing Partner, Ilay Yilmaz, Partner, and Nazli Taskıran, Associate, ELIG, Attorneys-at-Law

Transparency International (“TI”) has published its regional Corruption Barometer for Europe and Central Asia¹ (“Report”) on 16 November 2016. According to the findings of the Report, one third of the citizens of the region perceive corruption as one of the biggest three challenges facing their country.

More than half of the people do not think their government is doing a good job combating corruption in the public sector. Indeed, nearly one in three of the participants believe their government officials, elected and appointed, are mostly or entirely corrupt. As for the private sector, 26% think that business executives are highly corrupt. The Report further finds that in the last year 1 in 6 households have paid bribes to access public services. 

The Report suggests that 22% believes corruption or bribery is one of the three biggest problems in Turkey. This was selected among issues such as economy, unemployment, crime, immigration, health and education. Further, 40% in Turkey believe most or all members of the parliament are corrupt. 42% in Turkey think that government’s actions to fight corruption are very bad or fairly bad. In European Union accession countries (including Turkey), just under 1 in 5 had to pay bribes when in contact with the police and civil courts. 

The report suggests that according to the respondents, the most effective actions one can take to help combat bribery are “reporting corruption incidents” (18%) and “refusing to pay bribes” (20%). An overwhelming 27% believe that there is nothing ordinary people can do to fight corruption. The Report also notes that such actions are rarely taken by the population. Research finds only 19% of those who said they paid bribes in last year actually reported it. This is mostly because 30% fear retaliation if they report corruption (2 in 5 actually suffer retaliation when corruption is reported), 14% believe that corruption is too difficult to prove and 12% think that nothing will be done even if they report corruption. 

In 2014, TÜSİAD (a Turkish private sector NGO titled “Turkish Industry and Business Association”) had conducted a survey within the Turkish private sector called “Corruption from Business Perspective: Perception and Policy Recommendations”². The related findings of the survey indicated that Turkish business world view corruption as a problem with medium significance, preceded by problems such as high taxes, labor costs and unrecorded economy. Nevertheless, the survey indicated that 37% of the participants believe that corruption is frequent and on a large scale. Further, 46% of the participants believe that corruption will increase.  The survey found that, of the people who do not think they would report corruption believe they would not because there is no legal reporting mechanism (30%), reporting would not bear any results (12%) and they fear their identities would be exposed (6%). 

From a Turkish point of view, both the Report and the survey when reviewed together, provide perspective into corruption perceptions and how to fight corruption. On the matter of how to eradicate corruption, one of the measures suggested by the Report is increasing whistleblower protection through legislation. The TÜSİAD survey on the other hand, recommends collective actions as a way of fighting corruption. Both very valuable recommendations, TÜSİAD’s policy recommendation is more targeted towards prevention, while TI’s recommendation is regarding misconduct occurring after corruption, which in the long run is also aimed towards prevention.     

(First published in Mondaq on November 22, 2016.)

By Gonenc Gurkaynak, Managing Partner, C. Olgu Kama, Partner, and Burcu Ergun, Associate, ELIG, Attorneys-at-Law

1. https://www.transparency.org/news/feature/governments_are_doing_a_poor_job_at_fighting_corruption_across_europe 
2. The survey, led by Gönenç Gürkaynak, the Managing Partner of ELIG, Attorneys-at-Law, was conducted in Istanbul over a sample of 801 respondents, representative of the business community. A total of 80 representatives from the construction sector, 144 representatives from the wholesale and retail sector, 134 representatives from the accommodation sector, 80 representatives from transportation and communication sector, 186 representatives from the manufacturing sector and 177 representatives from other service sectors participated in the survey. The survey was based on nine in depth interviews in Istanbul and three focus group meetings in Denizli, Gaziantep and Antalya, the opinions of 36 business people in total were taken into consideration. 

Introduction 

Turkey has recently adopted a new law to officially enable temporary employment relationships through private employment agencies, while offering better protection for temporary staff.

The Law Amending Labor Law 4857 and Turkish Labor Agency Law 4904, which entered into force on May 20, 2016, frees the way for private employment agencies to become intermediaries in establishing temporary employment relationships between employers and employees. 

Previously, even though the Regulation on Private Employment Agencies banned private employment agencies from carrying out temporary employment activities, the law had no teeth. As a result of this loophole, private employment agencies were engaged in placing temporary employees, even though this was technically against the law.

The amended Article 7 of the Turkish Labor Law allows private employment agencies to arrange temporary staffing for certain types of work, and regulates the employment terms and conditions for temporary workers. 

Principal Modalities for Establishing Temporary Employment Relationships Through Private Employment Agencies

Private employment agencies can provide temporary staffing services by concluding a temporary employment agreement with an employer and transferring an employee over to the employer under the conditions set forth in the Labor Law. 

However, private employment agencies cannot be intermediaries for all kinds of work; the Amending Law restricts them to providing temporary employees for only certain types of jobs or situations, including: (a) an employee’s maternity leave, military service and other cases where an employment agreement is suspended; (b) seasonal agricultural work; (c) household work; (d) intermittent work not included in the daily business of the enterprise; (e) urgent work with regard to occupational health and safety, or in the event of a force majeure which significantly affects production; (f) unpredictable increase in the enterprise’s average work load which necessitates temporary employment; and (g) periodic increases in the workload, in situations other than seasonal work.

Allowing employers access to temporary employment due to an “unpredictable increase in the capacity of the enterprise’s average overload” has been criticized, as it creates uncertainty as to how to determine the “average workload.” Employers could abuse this by adopting a relatively low workload as an average in order to employ the minimum number of permanent employees and use temporary workers when the workload increases. 

While the duration of temporary employment is limited to the duration of the situation requiring temporary help (e.g., maternity leave), there is no inherent time limitation for seasonal and household work. The law attempts to address this by setting out overall limits for temporary employment. Temporary employment agreements can be signed for up to 4 months and renewed twice for up to 8 months – for a grand total of 12 months. Furthermore, if an employer uses a temporary employee for a certain job, it then has to wait at least 6 months after that employee leaves before using a private employment agency to staff that role again.

If the temporary employment relationship exceeds the above thresholds, then an indefinite employment relationship is established between the temporary employer and employee. When this happens, the liability of the private employment agency ceases. 

In the three-party relationship, the private employment agency is the employee’s principal employer and is responsible for paying the employee’s salary and benefits. The employment agency can establish a temporary employment relationship by signing a written employment agreement with the employee, and a written procurement agreement with the temporary employer. 

To protect temporary employees from differential treatment by employers, the Amending Law provides that temporary employees cannot be employed under less favorable conditions than permanent employees for the same work. This includes being entitled to the same social benefits which are offered to full time staff during the employment period. At the end of the employment relationship, the temporary employer can offer the employee a permanent position and this cannot be limited in the employment agreement between the private employment agency and the employee.

Conclusion

Even though the Amending Law takes a positive step in protecting the rights of temporary employees, it has also been the target of criticism among academics who point to the uncertainty in some of the situations where employers can use private employment agencies. No doubt the uncertainties regarding the implementation of the amended Article 7 of the Labor Law will be addressed by the labor courts in the years to come.

By Galip Selcuk, Partner, and Sirma Zeytinoglu, Associate, Balcioglu Selcuk Akman Keki Attorney Partnership

This Article was originally published in Issue 3.4 of the CEE Legal Matters Magazine. If you would like to receive a hard copy of the magazine, you can subscribe here.