Data Portability in Turkish Competition Law

The Turkish competition law regime does not precisely address concerns surrounding access to data held by companies with market power in digital markets. However, the recent Draft Regulation on Amending Law No. 4054 on the Protection of Competition proposed restricting and regulating the access to data related to undertakings with significant market power in parallel with the Digital Markets Act in the European Union. The Turkish Competition Authority (Authority) acknowledged the difficulties in determining the scope of effect and establishing competition violations based on big data. The Authority stated that conventional practices and approaches would prove insufficient to handle issues in the digital market.

While the concept of “data portability” is relatively new in the Turkish competition law domain, the Turkish Competition Board (Board) has shed light on its approach towards data portability practices in Turkey in certain instances. In Nadirkitap (07.04.2022; 22-16/273-122), the Board acknowledged the increasing importance of data and data portability in online marketplaces and stated that restricting data portability might create transition costs for the data owner, as a result of which, data owners may choose to stay on the platform they first signed into due to transition costs if they find it burdensome to provide their data again to another platform, despite being a better and cheaper alternative. In this sense, the Board makes it clear that the restriction of data portability by a dominant undertaking may create entry barriers for competitors by creating artificial transition costs, in other words, it may lead to constitute an exclusionary abuse. In the decision, the Board decided that the online book sales platform holds a dominant position in the market for platform services for second-hand book sales. As such, the Board assessed that Nadirkitap abused its dominance by unjustifiably preventing access to and the portability of book data uploaded to its website by third-party sellers. As a result, the Board decided to fine Nadirkitap. In addition, to ensure effective competition, the Board also ordered Nadirkitap to cease blocking access to data and provide sellers with their data in an accurate, understandable, secure, complete, free-of-charge and appropriate format, should the sellers request so. Thus, sellers are now able to transfer data to other platforms. Nadirkitap is significant since it displays the approach the Board takes in relation to digital platforms and data portability.

On 18 April 2023, the Turkish Competition Authority made available its study titled “Reflections of Digital Transformation on Competition Law”. The study concluded that digital markets diverge from traditional markets in terms of network effects, economies of scale and data-driven business models. It also examined potential competition law violations in digital markets. The study proposed various probable solutions to address competition law concerns in digital markets, in areas such as the promotion of the interoperability between different platforms, data portability and data sharing, algorithmic transparency, and enhanced merger control. The Authority stated in the study that prevention of access to data or interoperability as one of the important methods the competition can be distorted by an undertaking and finds it appropriate to regulate data access practices of platforms with significant market power, as a potential solution to address competition concerns in digital markets.

For more information on data portability in Turkish competition law, please feel free to reach out to ELIG Gurkaynak at +90 212 327 1724 or through gonenc.gurkaynak@elig.com.