Thu, Dec
53 New Articles

Cooperation Between the Turkish Competition Authority and the Personal Data Protection Authority

Cooperation Between the Turkish Competition Authority and the Personal Data Protection Authority

  • Smaller Small Medium Big Bigger
  • Default Helvetica Segoe Georgia Times

Competition law and data protection law are both regarded as essential parts of digital markets and the digital economy. Although they are two separate disciplines, these disciplines have started to overlap, especially when it comes to digital markets where the economic value of data has started to be discussed in conjunction with the concept of big data.

Indeed, in digital markets, data not only serves as data, but also is considered as a factor that ensures market power and/or dominant position. Especially after the Facebook decision by the German Competition Authority, the relationship between competition and data protection authorities and whether they can interfere with each other's jurisdiction has started to be discussed worldwide. With the recently announced cooperation protocol between the Turkish Competition Authority and the Personal Data Protection Authority, it has become a matter of curiosity whether this debate can be resolved more easily in the Turkish practice. In this respect, the protocol, which strengthens the co-operation between the two institutions under Turkish law was published.

The Process that Started in Europe with the Facebook Decision

The Facebook decision dated February 6, 2019 issued by the German Federal Competition Authority "Bundeskartellamt" was an important launch point of the jurisdictional debate between competition and data protection authorities. In the decision, the terms of service applied to users by Facebook, which was determined to be in a dominant position in social networks, were discussed and certain restrictions on the processing of user data were stipulated. Previously, Facebook users were able to use the platform if they agreed the terms of service stipulating that Facebook may collect data including Facebook.com, but also through outside of the website and smartphone applications, including websites and applications owned by Facebook and the possibility of combining data collected by third parties and smartphones and transferring it to the user's Facebook account. In this respect, third parties were able to collect data by using Facebook's WhatsApp, Oculus, Masquerade and Instagram business services and third-party websites and applications. However, Facebook's actions in question were deemed incompatible with both the principles of personal data protection and competition rules. The most important and most controversial aspect of the infringement decision issued by the German Federal Competition Authority was that the German Federal Competition Authority considered itself authorised to decide on Facebook's breach of data protection rules in addition to competition infringements, and that the decision included assessments regarding the European Union General Data Protection Regulation ("GDPR").

A legal action was filed before the Higher Regional Court of Düsseldorf against the decision of the German Federal Competition Authority, which prevented Facebook from processing combined user data on its platform without the consent of users. In that case, the Higher Regional Court of Düsseldorf sought the opinion of the Court of Justice of the European Union ("CJEU") on how particular provisions of the GDPR should be interpreted and whether national competition authorities are entitled to apply the GDPR when investigating competition law infringements. In its decision dated 4 July 2023, the CJEU ruled that national competition authorities may apply the GDPR in their examinations of alleged abuse of dominant position. However, the CJEU also underlined that competition authorities may only use their competences to determine infringements of competition law, not to take over the duties of data protection authorities, and that they must cooperate with other authorities in the exercise of these duties.

A similar Facebook (now Meta) investigation was initiated in Türkiye and the Competition Board examined similar issues under Turkish competition law. The Board decided that Facebook had distorted competition by combining the data collected from Facebook, Instagram and WhatsApp services, which are referred to as core services, making it difficult for its competitors operating in the personalised social networking services and online display advertising markets and creating barriers to entry to the market. Similarly, the Board included assessments regarding the personal data protection legislation in its decision.

Protocol Signed Between The Authorities

Although the process that started with the Facebook decisions has raised questions between the jurisdictions of competition and data protection authorities, both the CJEU decision and the cooperation efforts of national authorities aim to facilitate the clarification of these grey areas. Accordingly, it was announced that a Cooperation and Information Sharing Protocol ("Protocol") was signed between the Turkish Competition Authority and the Personal Data Protection Authority on October 26, 2023. In the joint announcement made by both authorities, it was stated that with the Protocol in question, the two authorities will cooperate on the following issues:

  1. Conducting joint activities in developing areas that fall within the jurisdiction of both authorities and that may cause irreparable damage in the absence of rapid and effective intervention,
  2. Publishing reports with the cooperation of both authorities in order to enhance the awareness of users in terms of the protection of personal data and competition, especially in digital markets, and conveying a common message to undertakings in terms of practices concerning both areas of law,
  3. Organising joint presentation and discussion programmes within the scope of the traditional "Wednesday Seminars" of the Personal Data Protection Authority and/or "Thursday Conferences" of the Competition Authority,
  4. Organising workshops where the relevant authorities share their expertise and experience in their fields of duty with each other,
  5. Consulting on common issues in national and/or international events organised and/or attended by the relevant authorities, and supporting these events on issues within the authorities' own fields.

The announcement also stated that the Protocol and other efforts aim to establish effective competition in the market and to strengthen the control of consumers over their personal data.

Although global discussions continue in the areas where competition law and personal data protection law overlap, it is seen that the foundations of cooperation between the two authorities have been laid in Türkiye and it is aimed to work together by strengthening the communication between the institutions instead of embracing a conflict.

By Gokce Kuranel Albayrak, Senior Lawyer, and Aziz Can Cengiz, Attorney, Guleryuz & Partners

Turkey Knowledge Partner

NAZALI offers a broad range of services in the fields of Tax, Audit, Corporate and Commercial Law, Mergers & Acquisitions, Corporate Finance, Banking, Finance and Capital Markets, Protective Legal Services and Dispute Resolution, Personal Data Protection and Privacy, Social Security and Labor Law, Occupational Health and Safety, Competition Law, Intellectual Property Law and R&D, Compliance and White-Collar Crimes, Administrative Law, Real Estate Law, Customs and Foreign Trade, Accounting and Payroll, Financial Incentives and Advisory Services and Public Administration and Compliance through its partners, associates and consultants of different seniorities who have both public and private sector experience.

What sets NAZALI apart from others is that NAZALI offers a truly comprehensive service to its clients with experts from different disciplines working collaboratively as a team under one roof enabling us to evaluate all dimensions of legal matters together with financial and technical matters.

The services that NAZALI provides to its clients include the most appropriate solution with the support of technical departments specialized in their fields. In this context, NAZALI associates are supported by NAZALI technical team and work alongside the experts in the fields of finance, social security and customs matters. NAZALI has set out with the aim of providing the most efficient and comprehensive solution for its clients by adapting to the developing conditions and happily gained the trust of its clients by never compromising the quality of service.

As conditions continuously evolve, NAZALI always aims to further itself remaining true to its motto “GROW WITH KNOWLEDGE” and has set out with the aim of providing the most efficient and comprehensive solution for its clients by adapting to the developing conditions and happily gained the trust of its clients by never compromising the quality of service.

Firm's website: http://www.nazali.com

Our Latest Issue