Ekin Inal | Jack Figura
Since the establishment of the first major automotive plant in 1956, Turkey’s automotive industry has made significant progress, from mere assembly work to massive production. Between 2000 and 2017, original equipment manufacturers (OEM) invested USD 14 billion in their operations in Turkey. Turkey is the fifth largest automotive producer in Europe and automotive industry is a leading driver of the Turkish economy.
Although Turkey set the goal to manufacture its national car a long time ago, it still has not launched its national brand. In 2015, it purchased the license to Saab 9-3 from National Electric Vehicle Sweden, and more recently the Turkish Government brought together the country’s five major suppliers and technology companies to produce its first national car.
It seems unlikely that Turkey will start manufacturing autonomous vehicles in the near future. There is currently no ongoing regulatory work to prepare the country for this new technology; therefore even if autonomous vehicles are made available to Turkish consumers through import, both the infrastructure and legal regime should be able to accommodate driverless cars. Experts have suggested certain amendments to current legislation, but these have not been implemented yet.
(i) Liability issues – civil liability
Under the Highway Traffic Law No. 2918 (the “Highway Traffic Law”), ”operator” of a motor vehicle is vicariously liable for the death or bodily injury of, or loss or damage sustained by, a person, arising from the "operation" of such vehicle. This type of liability with no fault is set forth due to the risks that motor vehicles may pose to third parties.
"Operator" can be the owner or lessee of a vehicle, or who holds the vehicle under his possession through a pledge agreement. In addition, owner of an auto repair or auto gallery with whom a vehicle is entrusted can be held equally liable as the operator of the vehicle due to the loss or damages caused by such vehicle. Operator of the vehicle is held directly liable for the fault of the driver or persons who assist with the driving/operation of the vehicle. A force majeure event or the gross fault of a third party/victim may be invoked to decrease the amount of damages to be paid.
Operation should be interpreted as a vehicle being set in motion (i.e., moving).
The Highway Traffic Law also provides for another type of liability for traffic accidents caused by motor vehicles that are not moving (even if the engine has been started) or that are being moved by an external force (natural force, human force, etc.) without the engine working. In that case the damaged party should prove the fault of the "operator" or a defect in the vehicle to hold the operator liable.
Before autonomous vehicles hit the road in Turkey, the Highway Traffic Law and other applicable pieces of legislation will need to be overhauled to adapt the relevant concepts (operator, owner, etc.) to such vehicles. As stated above, the applicable legislation allows for reduction of the damages payable by the operator of the vehicle under some circumstances (fault of injured party, force majeure, defect, etc.), and we would expect a case law to develop around this new technology and revised terms and concepts applicable to it.
(ii) Liability issues – criminal liability
Another intricacy posed by autonomous vehicles is the criminal liability in the case of a car accident involving death or bodily injury. Under Turkish law, only individuals may be held criminally liable depending on the applicable level of culpability. Legal entities may not be held criminally liable and may only be subjected to certain security measures if explicitly provided by law.
With the advance of autonomous vehicle on roads, we may expect further amendments to Turkish penal laws regulating the criminal liability of legal entities and security measures applicable to them. It is obvious that an autonomous vehicle may not act with criminal intent; however, the applicable laws may be amended with a view to holding various parties involved in the production of the vehicle (manufacturer, software developer, etc.) and infrastructure providers to be criminally negligent in a car crash.
(iii) Insurance issues
In Turkey, automobile owners have to take out a compulsory motor third-party liability insurance (the "MTPL"), which covers the bodily and property damage that may be inflicted by an automobile on third parties, and the legal liability that falls on the owner of the vehicle. If the owner fails to take an MTPL for the relevant insurance amounts, the vehicle subject to the insurance requirement will be disqualified and not be allowed in traffic. The MTPL does not cover certain liabilities, such as damages to the goods in transit in the vehicle.
Automobile owners may also voluntarily take out additional insurance (kasko policies) to cover additional risks. As a result of the advancements in the autonomous vehicles technologies and widespread use of such vehicles, we expect the voluntary insurance policies offered by insurance companies to cover damages caused by or in relation to traffic accidents that autonomous vehicles are involved. These policies would need to cover various cybersecurity threats to which the autonomous vehicles may be exposed.
(iv) Data protection issues
Use and operation of autonomous vehicles may inevitably require the processing of a wide range of personal data, from identity information to biometric data.
Turkey enacted Law No. 6698 on “Protection of Personal Data” (Kişisel Verilerin Korunması Kanunu) (the “Data Protection Law”), on April 7, 2016. This long-awaited law is largely based on EU Directive 95/46/EC. The Data Protection Authority, established under the Data Protection Law, is empowered to draft secondary legislation and monitor compliance with data protection rules.
The Data Protection Law aims to protect the personal data of individuals, and the obligations apply to both private entities and public bodies and institutions. “Personal data” is defined as any information relating to an identified or identifiable person. The Data Protection Law does not provide specific examples of personal data; however, according to the guidelines published by the Data Protection Authority, this may include name, ethnicity, physical attributes, health, education and employment-related data, family life, communications, address, association or union memberships, shopping habits, etc. The Data Protection Law defines certain types of “special personal data” more broadly than the EU Directive, to include information on the appearance and clothing of the person, criminal records, biometric and genetic data.
To the extent autonomous vehicles use data relating to an identified and identifiable person, such as geolocation, driver behaviour or biometric data, then such use will be captured by the Data Protection Law and will be subject to the Authority’s oversight.
Processing of personal data may only be made with the express consent of the data subject. The Data Protection Law provides for certain exceptions depending on whether the information collected can be classified as special personal data. Regular, non-special, personal data may be processed without the owner’s consent if:
- Processing of such data is explicitly required by law;
- Processing is required to protect the life of the owner or a third party if the owner of the data is physically or legally incapable of providing consent;
- Processing is directly related to the execution or performance of a contract in which case only the personal data of the parties may be processed;
- Processing is required for the data controller to fulfill its own legal obligations;
- Such personal data was previously made public by the owner;
- Processing is necessary to establish, use or protect a right;
- To the extent that processing does not harm the rights of the data owner, processing is required for the legitimate benefit of the data controller.
Special personal data, except for data related to health conditions or sexual life of the owner, may be processed without the express consent of the owner if such processing is required by law. Data related to health conditions and sexual life may be processed without the express consent under certain circumstances stipulated in the Data Protection Law (e.g., processing is required for protecting public health, for medical diagnosis, etc.) but may only be processed by persons under a statutory confidentiality obligation.
(v) Transfer of data
Transfer of data is subject to the same rules and exceptions as the processing: In general, no transfer may be made without the express consent of the subject, but under certain circumstances, data may be transferred without consent. The same set of exceptions to the consent requirement above applies to transfer of data. Transfer of personal data without consent is subject to further restrictions if the data is transferred outside of Turkey. To transfer data outside of Turkey, either the data subject’s consent must be obtained directly or one of the following two conditions must be met: (i) the country to where the data is transferred must also offer an adequate level of protection or (ii) the data controller in Turkey must conclude an agreement with the data importer to impose an adequate level of protection for the personal data. This agreement must be submitted to and approved by the Data Protection Authority. In relation to condition (i) above, the Authority will issue a list of countries deemed to have an adequate level of protection.
B. First autonomous streetcar presented
Istanbul Electricity, Tramway and Tunnel General Management (“IETT”) which oversees Istanbul's public transport system, is working towards transitioning certain parts of the public transport into driverless and electric vehicles. IETT recently presented a prototype of an autonomous electric streetcar, which will initially only be used in areas closed to traffic and in airports.
[In addition to public sector efforts, certain private sector players, such as AVL Turkey (part of AVL Global, developer of powertrain systems) has stated that, together with their team of engineers, they were working on a prototype of an autonomous vehicle and aiming to have their autonomous car road-tested in three years.]
 See Investment Support and Promotion Agency of Turkey's page on automotive industry, http://www.invest.gov.tr/en-US/sectors/Pages/Automotive.aspx (last visited on April 24, 2018).
 There exist certain exceptions to the liability of the operator provided for under the Highway Traffic Law. For instance, in the case of the death or bodily injury sustained by a passenger who is being transported free of charge, liability of the owner may not be invoked pursuant to this law but under the general tort liability provisions of the Turkish Code of Obligations.
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