The Guideline on Examination of Digital Data during On-site Inspections (“Guideline“) accepted by the Competition Authority (“Authority”) on October 8, 2020 was published. The Guideline makes explanations regarding the procedures and principles to be applied in the processes of digital data inspection scope of Article 15 of the Law No. 4054 (“Law”) on the Protection of Competition, which authorizes the Competition Board to inspect on-site.

What does the Guideline explain?

The Case Handlers (The Competition Head Expert, Competition Expert and Competition Assistant Expert) are authorized to examine information systems such as desktop / laptop computer, portable device and storage devices such as CD, DVD, USB, external hard disk, backup records, cloud services. The Case Handlers may benefit from keyword search tools in systems belonging to the enterprise or forensic information software and hardware that enable qualified searches in digital data.

As a result of a quick review to determine whether portable communication devices such as mobile phones and tablets contain digital data belonging to the enterprise, it may be decided whether these devices will be subject to inspection or not. If it is determined that these devices contain data, the devices will be examined through forensic tools. However, if the devices are entirely for personal use, they will not be subject to examination.

According to the Guideline, it will be the responsibility of the undertaking to prevent interference with the data and the environment where the data is kept during the examination of the Case Handlers. The undertaking provides full and proactive support on informing the Case Handlers about provide information about software and hardware related to the information technologies used, provide system administrator privileges, provide remote access to the e-mail accounts of the employees of the enterprise, isolate computers and servers from the network environment, restore backed up corporate data.

If deemed necessary during the examination, the relevant digital data will be copied to the data storages by forensic information methods and the copied data will be indexed and examined by the Case Handlers.

As a result of the examination, the digital data deemed necessary will be copied to two separate data stores and a copy will be given to the undertaking. After the examination is complete, the data contained in the data stores used during the examination will be irreversibly deleted, except for the data stores that contain this digital data.

Although it is stated in the Guideline that it is essential to conduct the examination in the campus belonging to the undertaking, if it is deemed necessary, the examination can be continued in the forensic informatics laboratory within the Authority. However, there is an exception to this situation in that the examination of digital data obtained from mobile phones must be completed at the campus of undertaking in any case. The digital data analyzed at the headquarters of the Authority will be transferred to three separate data stores. One of the copies will be left to the undertaking, the other two will be sealed and put under physical security. According to the Guideline, the relevant undertaking will be invited by the Authority to have a representative available at the time of opening the sealed envelope and during the ongoing examination in the forensic informatics laboratory.

In addition, in the event that the relevant undertaking claims that trade secret data among the digital data included in the file, which is considered as evidence as a result of the examinations conducted, action will be taken within the scope of the "Communiqué on the Regulation of the Right of Entry to the File and the Protection of Trade Secrets" numbered 2010/3.

The Guideline also discussed the principle of lawyer-client confidentiality. Accordingly, the correspondence between the client and an independent lawyer who does not have an employee-employer relationship with her/his client, in order to use the client's right to defense, will be deemed to be related to the professional relationship and will benefit from protection within the scope of the principle of lawyer-client confidentiality.

Finally, the Competition Authority has clearly stated the processes and principles for the review of digital data with this Guideline, and the undertakings must be familiar with the responsibilities and procedures covered by the Guideline.

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