The Data Protection Law (DPL) in Turkey and Cookie Consent Requirements

Background of the DPL Amendments

The Data Protection Law (DPL), initially enacted in 2016, is Turkey’s main legislative framework for the protection of personal data. Modeled in part after the European Union’s General Data Protection Regulation (GDPR), the law has undergone several updates to address emerging challenges in data privacy. The latest amendments, codified through Law No. 7499 and effective as of March 12, 2024, primarily target cross-border data transfers but have broader implications for data processing activities, including cookie management.

The amended DPL introduces three mechanisms for transferring personal data abroad:

1. Adequacy Decisions: Transfers are allowed to countries or entities deemed to provide adequate protection.
2. Appropriate Safeguards: Transfers are permitted under predefined contractual or corporate frameworks.
3. Incidental Transfers: Non-regular transfers are allowed under exceptional conditions.

Each of these mechanisms demands a heightened level of transparency, accountability, and explicit consent—principles that align closely with cookie consent requirements.

Cookie Consent Requirements Under the Amended DPL

Cookies, as tools that often collect and process personal data, fall squarely under the DPL’s scope. Whether used for analytics, marketing, or improving user experience, cookies often involve data processing activities that may entail cross-border transfers. The amended DPL emphasizes the following requirements for compliance:

1. Explicit and Informed Consent

Consent remains at the heart of lawful data processing under the DPL. For cookie usage, businesses must ensure:

• Users are fully informed about the types of cookies being deployed, their purposes, and whether the data collected will be shared with third parties or transferred abroad.
• Consent is freely given, specific, and unambiguous. Pre-checked boxes or implied consent mechanisms (e.g., “By using this site, you agree to cookies”) are no longer sufficient.
• Separate consent is obtained for different cookie purposes, such as analytics, targeted advertising, or functionality.

2. Transparency Through Cookie Policies

Transparency has been elevated as a priority in the amended DPL. Websites must update their cookie policies to include:

• A detailed explanation of the cookies used, categorized by purpose (e.g., necessary, performance, advertising).
• The duration for which cookies will remain active and whether they are first-party or third-party cookies.
• Clear information about international transfers, including the specific countries or entities receiving data.

3. User Control and Withdrawal of Consent

Under the amended DPL, users must have the ability to:

• Refuse cookies without experiencing degradation in website functionality, except for strictly necessary cookies.
• Withdraw consent as easily as it was given. This necessitates the inclusion of easily accessible cookie settings on websites, enabling users to modify their preferences.

4. Data Minimization and Purpose Limitation

Cookies must only collect data that is strictly necessary for their intended purpose. Organizations need to conduct periodic reviews of their cookie usage to ensure compliance with the DPL’s principles of data minimization and purpose limitation.

Cookie Consent Requirements Under the Amended DPL

One of the most impactful changes under the amended DPL is the regulation of cross-border data transfers. Since cookies often facilitate the transfer of personal data (e.g., IP addresses, browsing history) to third-party service providers located abroad, organizations must adhere to one of the three mechanisms established by the amendments.

Adequacy Decisions

If Turkey determines that a country or entity provides an adequate level of protection, data transfers via cookies can proceed without additional safeguards. However, until such adequacy decisions are issued, businesses must rely on the other two mechanisms.

Appropriate Safeguards

Appropriate safeguards, such as standard contractual clauses (SCCs) or binding corporate rules (BCRs), are necessary for transfers to countries without adequacy decisions. Websites utilizing third-party cookies (e.g., for Google Analytics or Facebook Ads) must ensure these providers adhere to these safeguards.

Incidental Transfers

For exceptional, non-regular transfers (e.g., one-time troubleshooting), the amended DPL allows for incidental data transfers. However, this route should not be relied upon for ongoing cookie-based data sharing.

Practical Steps to Achieve Compliance

To ensure compliance with the amended DPL, organizations need to adopt a proactive approach to managing cookies and third-party tracking technologies. Key steps include:

1. Conduct a Cookie Audit

Begin by identifying all cookies used on your website, including their types, purposes, and whether they involve third-party tracking or cross-border data transfers.

2. Update Cookie Consent Mechanisms

Replace outdated consent banners with interactive tools that allow users to:

• Accept or reject cookies by category.
• View detailed cookie information before making a choice.
• Change their preferences at any time.

3. Review Third-Party Contracts

Ensure contracts with third-party cookie providers (e.g., ad networks, analytics platforms) include provisions for compliance with the amended DPL, particularly regarding cross-border data transfers.

4. Provide Training and Awareness

Train employees involved in website management or marketing on the implications of the amended DPL and the importance of compliant cookie practices.

5. Leverage Technology

Invest in a consent management platform that automates cookie consent collection, record-keeping, and user preference management.