Turkish Competition Authority published guidelines on examination of digital data

Kolcuoglu Demirkan Kocakli/ Cathay Turkey

The Law Amending the Law on Protection of Competition entered into force in June 2020. Following the amendment to Article 15/1(a) titled "On-Site Inspection", the Turkish Competition Authority (the "TCA") published the Guidelines on Examination of Digital Data on On-Site Inspections (the "Guidelines") last week. The Guidelines aim to determine the general principles to examine all kinds of data and documents kept in undertakings' electronic media and information systems at undertakings' premises or the TCA's headquarters.

The Guidelines introduce notable changes to the TCA's ongoing practice. Some of these significant changes are listed below:
  • The TCA's authorised personnel may utilize forensics hardware and software to conduct qualified searches on undertakings' information systems such as servers, PCs/laptops and portable devices as well as storage tools such as USB sticks, external hard disks, back-up storages and cloud services.
  • Portable communication devices (mobile phones, tablets, etc.) used by the investigated undertakings' employees that contain the undertakings' digital data will be considered within the scope of the inspection and may be examined through forensics tools. However, portable devices that are completely dedicated to personal use are out of scope of the on-site inspection. The Guidelines state that whether or not the device is specified for personal use will be determined through a "quick review" by the TCA's personnel.
  • The main principle is to complete the on-site inspections at the investigated undertakings' premises. However, if deemed necessary, on-site inspections may be continued in the TCA's computer forensics laboratory. That being said, digital data obtained from mobile phones will in any case be examined at the investigated undertakings' premises.
  • If the on-site inspection continues in the TCA's computer forensics laboratory, the digital data to be examined will be copied into three separate data storage devices, one of which will be given to the investigated undertaking. The undertaking is entitled to have a representative present during the opening of the other two copies protected in a sealed envelope and during the examination in the TCA's computer forensics laboratory.
The Guidelines do not only draw a clear framework on the procedures to be applied by the TCA during the examination of digital data, but also specifies undertakings' obligations during an on-site inspection. As undertakings may face high administrative monetary fines in case of non-compliance with these obligations, they should examine the Guidelines in detail to minimize such risk.