About the Announcement
Personal Data Protection Board has decided to initiate an investigation ex officio about WhatsApp Inc. with the decision dated 12.01.2021 and numbered 2021/28.
It has been deemed appropriate to initiate an investigation on, whether there has been an violation to the provision regulated in Article 9 of the Law on the Protection of Personal Data (“Law”) which states that personal data can be transferred abroad based on the express consent of the person concerned and whether the condition of “disclosure of express consent with free will” defined in Article 3 of the Law has been violated,
whether the consent required as a prerequisite for transfer to another company abroad and the principles of “compliance with the law and the rules of honesty” “processing for specific, explicit and legitimate purposes” and “being linked, limited and proportionate to the purpose of processing” regulated in Article 4 of the Law have been violated,
whether the explicit consent, which has been emphasized by the Board in many of its decisions, is compatible with the condition of “the service cannot be conditioned” because the user agreement is set as a precondition for the users who are the person concerned,
whether the issue of transferring the data abroad is contrary to the provision of special and explicit consent in the transfer of the data explained above.
It was announced to the public that a new evaluation will be made by the Board on the process on 08.02.2021.
The Law is rather strict about the non-transfer of personal data abroad. It has been articulated in Article 9 that matter in question is not possible without the explicit consent of the related person.
Arrangement regarding the processing of users’ data by transferring abroad has been made with the modifications made in user agreement of WhatsApp application. Users who want to use the application must accept the relevant agreement, otherwise they will not be able to use the application. With whom the related personal data will be shared has been left unknown with this arrangement.
The motivation of the United States-based Whatsapp Inc to reveal these conditions, which seem clearly contrary to the Law based on the European Data Protection Directive No. 95/46 and which have more place on the world agenda than expected, is a matter of curiosity. It should be noted in this regard that there are certain differences in the approaches of the United States of America (“USA”) and Europe to personal data.
While European Union gives importance to the relationship of personal data with human dignity and the matter in question is morally examined because this data is mostly related to person’s right; personal data has a material value and is prone to be subject to commercial contracts in the USA. It would not be wrong to say that there are historical differences in the attitude of countries with two separate legal systems to personal data. Whatsapp Inc., part of Facebook Inc., as a US-based messaging application, have once again reminded us of the importance of the law on the protection of personal data with the new user agreement it has introduced in the process of adapting to the technology age.
Finally, it should be noted that the Personal Data Protection Board’s stance regarding the transfer of personal data, especially abroad, and the transfer between multinational companies will be shaped more clearly as a result of this investigation.