AYM’s Decision Affecting the Provision of Geographic Data License

    The Constitutional Court (AYM) issued a decision on case no E.2020/42 K.2023/99, which was filed for the annulment of some of the provisions in Law No. 7221 on Making Amendments in Geographical Information Systems and Some Laws (Law), on 18 May 2023. The decision was published in the Official Gazette on 4 October 2023.

    Among the provisions in the Decision, there are “collaborations for revenue sharing in the field of data mining and new data generation in the case of appropriate opinions were allowed, provided that national security provisions, laws related to intellectual, industrial, and commercial rights, and the Personal Data Protection Law were not violated” as stated in the Law. The part stating that these collaborations can be carried out free of charge with data-producing institutions, organizations, and universities, with the approval of the relevant opinions, was subject to an annulment lawsuit.

    The grounds for the annulment request include allegations that the relevant regulation violates the right to personal data protection. Additionally, it is argued that these rules are inconsistent with international agreements, the details of sharing are unclear, lack objective criteria, and are in violation of various articles of the Constitution.

    AYM, following a detailed assessment of the definitions and scope of geographical data in relation to the annulment request, concluded that geographical data contain location and spatial information, do not contain any form of personal data, and therefore, during the collection and generation of geographical data, there is no access to data that qualify as personal data, and personal data is not being collected. Consequently, it decided that the relevant regulation “does not restrict the right to demand the protection of personal data.” Furthermore, AYM determined that the regulation being challenged clearly defines the types of collaborations in which geographical data can be shared free of charge and the conditions under which such sharing is subject, making the regulation neither vague nor unpredictable. Therefore, AYM concluded that the regulation is not in violation of the Constitution.

    However, the assessment of the second sentence in the second paragraph of Article 1 of the Law attracted attention. This provision stipulates that individuals and private legal entities who want to collect, produce, share, or sell geographical data within the scope of the National Geographic Data Responsibility Matrix of Türkiye must be subject to legal regulations related to intellectual, industrial, and commercial rights and the Personal Data Protection Law. It also states that these individuals must have the necessary documents to carry out their commercial activities and that these transactions are subject to the approval of the Ministry of Environment, Urbanization, and Climate Change (Ministry). AYM annulled the part of the provision stating that the approval period and the procedures and principles related to data would be determined by the Ministry, as it found this to be contrary to the Constitution.

    In this context, AYM stated that it is unconstitutional to introduce another regulation on matters that should be regulated by law. AYM stated that, in accordance with the principle of legal certainty, legal regulations should be clear, understandable and predictable in a way to provide assurance to individuals and the administration, and that the freedom of enterprise protected by the Constitution is possible for real or private legal entities to carry out economic and commercial activities in the fields they prefer and to carry out their activities in the manner they wish without interference from the state or third parties. In this context, AYM found that the regulation subject to the annulment case restricted the freedom of enterprise as it did not determine the conditions and objective criteria for the permissions to collect, produce, share or sell geographical data and regulated the freedom of enterprise, which should be regulated by law, through an administrative act and decided to annul the regulation.

    The annulment decision will enter into force nine months later (on 4 July 2024). With the enforcement of the Decision, secondary provisions of the regulations issued by the Ministry regarding permission and licensing obligations will lose their legal basis. However, the removal of the legal basis for secondary regulations issued by the Ministry alone is not sufficient to halt these processes.

    Therefore, the fate of these secondary regulations will become clear in the coming period, depending on how they are assessed after the matter is brought before the Council of State.

    You can reach the full text of the Decision here (only available in Turkish).

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