A notice submitted to the Authority states the following, in summary; The data controller offers a special discount in certain products sold in its store for loyalty cardholders; therefore, these special discounts are conditional, and personal data of the customers are requested to obtain the loyalty card, where explicit consent is imposed as a condition.
Within the framework of the examination initiated on the subject, the data controller was reached for its defence. In its response letter, the controller states the following, in brief;

• The text for explicit consent presented to those applying for loyalty program expressly lists the purposes of the explicit consent, therefore, the criterion for explicit consent to be relevant to a specified issue is met,
• A text for explicit consent is presented to data subjects, furthermore, data subjects are informed, in accordance with the legislation, of the processing of their personal data and about their rights,
• Data subjects who do not give their explicit consent as part of loyalty program can always shop from its store or via its website, everyone can access the controller’s products and services, and everyone can buy them at the determined prices, and the discounts made on these products and services are below the current price of the product or service and are in the nature of an additional benefit,
•  Discounts offered as part of the program to data subjects giving explicit consent are not related to the main product or services but for additional benefit, which shows that this offer is not put forward as a prerequisite for obtaining the explicit consent, for providing a product or service, or making use of the product or service,
• It is also expressly acknowledged in the European Union legislation that providing additional benefits on the condition of explicit consent will not lift the condition of "giving explicit consent based on free will", which is explained in the Handbook on European Data Protection Law as “…. This does not mean, however, that consent can never be valid in circumstances where not consenting would have some negative consequences. For instance, if not consenting to having a supermarket’s customer card only results in not receiving a small reduction in the price of certain goods, consent could be a valid legal basis for processing the personal data of those customers who consented to having such a card. There is no subordination between company and customer and the consequences of not consenting are not serious enough to prevent the data subject’s free choice (provided that the price reduction is small enough not to affect their free choice.)”

Within the framework of the examination carried out on the subject, the Board evaluates that;

• Explicit consent has three elements namely; being related to a specific subject, being informed, and being disclosed with free will in accordance with Article 3(1)(a) of the Personal Data Protection Law No 6698, 
• From the information provided in the notice subject to the examination process it is understood that the data controller has determined the price of the product, which is originally 99.99 TL, as 79,99 TL as part of the loyalty card special discount and offers it for sale with this price, 
• The data controller does not lift the opportunity to shop in its stores for those who do not want to be part of loyalty program and/or give explicit consent within the scope of the program, and the customers who are not part of the loyalty program continue buying products at normal prices without discount,
• Offering products/services with reduction in price with additional benefits as part of the loyalty program does not mean that explicit consent is imposed as a condition.

On the basis of the foregoing evaluations, the Board, with its Decision numbered 2019/198 and dated 5 July 2019 decides that:

• There is no action to be taken regarding the notice within the scope of provisions of the Law, considering that offering products and services with an additional benefit within the campaigns and with reduction in prices as part of the loyalty program cannot be regarded as imposing explicit consent as a condition and as declaring consent as a prerequisite for the provision of, or benefiting from the products and services.