Atty. MELİS ŞAHİN
With the development of technology, individuals’ access to the internet and digital platforms has increased and people of all ages have started to use social media platforms easily. As a result of this widespread use, the number of crimes committed on social media platforms such as X, Facebook, Instagram and TikTok has started to increase. Due to the unconscious use of social media applications, most of the society shares insulting expressions in the comments section of posts or through direct messages such as message boxes and e-mails, ignoring the legal responsibilities that may arise. It should be known that every message, post or comment shared is considered to be of the same legal nature as face-to-face communication, and even a word can cause responsibilities to arise.
The crime of defamation is regulated both in our domestic law and in international legislation, and the honor and dignity of individuals are legally protected. Whether a word constitutes the offense of defamation is determined by taking into account the material elements in the law, as well as the words that the Court of Appeals considers as defamation.
WHAT IS DEFAMATION?
A person has certain rights arising solely from the fact that they are an individual. These rights are characterized as personality rights and are protected under both the Constitution of the Republic of Turkey and the European Convention on Human Rights. The act of defamation is damaging to personal rights, and the dignity and reputation of the individual in the society may be damaged due to defamation. Along with these issues, all behaviors that harm personal honor and dignity and disregard their values are included in the crime of defamation. The humiliation, disregard and victimization of the values of the person through such actions entitle the person to both material and moral compensation.
The act of defamation can be committed against the face of the victim as well as in absentia. This means that the use of expressions that damage the victim’s pride and reputation in environments where the victim is not personally present will damage their personal rights as if they were said in their presence.
It is possible to commit the crime of defamation with a very wide range of words. Although it does not include all, some of the words considered insulting by the High Court of Appeals are as follows: dishonorable, idiot, whore, animal, undignified, thief, briber, immoral…
LEGAL EVALUATION OF THE OFFENSE OF INSULT
The offense of insult is defined in the Turkish Penal Code No. 5237. It is regulated in Articles 125 and following under the heading “Crimes against Honor”. In this type of crime, the victim can be anyone, no distinction is made by the Law. The important point is that it must be committed against a living individual. In case of insulting a deceased person, a different type of crime, the crime of “insulting the memory of a person” will come to the fore. The law protects the values of not only living but also deceased individuals.
The perpetrator of the offense of insult is the person who fulfills the necessary conditions in Article 125 (1) of the Turkish Penal Code. According to the relevant provision, the person who “attributes a concrete act or fact that may offend or attack the honor and dignity of a person” will be deemed to have committed the crime of insult. As can be understood from the wording of the article, the occurrence of the offense of insult is not a single act; it can occur in various ways. In order to obtain if an expression constitutes the offense of defamation, we need to examine the conditions required in the relevant article by looking at the opinion of the High Court of Appeals. According to the High Court of Appeals, in order for the crime of defamation to occur, expressions that offend the honor, dignity and prestige of the victim must be used. If this criterion is not present, it will be considered as heavy criticism and no penalty will be imposed.
In a decision on this issue, The High Court of Appeals stated that in order for the crime of insult to occur, the behavior must be intended to humiliate the person. Whether an act is degrading or not is relative in some cases and may vary according to time, place and situation. Furthermore, according to the Court, the words to be considered as defamation must be of a nature that may clearly offend honor, dignity and prestige. 1
COMMITTING THE OFFENSE OF INSULT ON SOCIAL MEDIA
As explained above, with the development of technology and the digital world, people’s active use of the internet and social media has paved the way for the occurrence of many crimes. In this section, it will be explained in which way the offense of defamation will be deemed to have been committed through the most widely used social media platforms.
- Making insulting comments under the posts:
Making comments under the photos or posts shared by individuals in a way that offends their honor, dignity and reputation will constitute the crime of insult in accordance with Article 125/2 of the Turkish Penal Code. The relevant provision stipulates that if the act of insult is committed with a written message addressed to the victim, it will be punished with the amount of punishment in paragraph 1.
The High Court of Appeals, in a decision on this issue, stated that the application of Article 125/4 of the Turkish Criminal Code No. 5237 on insufficient grounds, without discussing whether the defendant’s posts would be seen by everyone, was a reason for reversal in the act of the defendant insulting the complainant via message from his account on the social networking site Facebook. 2
In another decision of the High Court of Appeals on this issue, the Court determined the establishment of a verdict without discussing whether the element of publicity occurred in the act of defamation on Twitter as a reason for reversal. 3
Furthermore, according to Article 125, Paragraph 4 of the Turkish Penal Code, if the offense of insult is committed publicly, the penalty to be imposed will be increased by 1/6th. The element of publicity is related to whether the offense is committed in a public place. The concept of publicity includes committing the act of insult in a way that everyone can see through social media accounts, and it is also stipulated in the Law that an aggravated sanction will be applied in this case.
- Sharing a post that is offensive to the individual:
The offense of defamation will be considered completed if it can be objectively understood who the victim is, even if the victim’s name is not given, explicitly or implicitly, when sharing posts on social media applications
In a decision of the High Court of Appeals on the subject, the defendant’s words addressed to the participant, who is a member of parliament, on Twitter, such as “Mr. Deputy, it is disgusting that human trash like …. have the same title as you” were deemed as a reason for reversal, without considering that the words were of a nature to offend the honor, dignity and prestige of the addressee and constituted the crime of insult, the decision of acquittal on grounds that were not appropriate was deemed as a reason for reversal. 4
- Sending insulting messages via the message box (DM):
Sending an insulting message from the private message sending option of social media applications or communication applications such as WhatsApp, sms, e- mail will cause criminal conviction over the basic form of the crime of insult, since it is only visible to the victim. The fact that individuals do not take the expressions they write over the message as seriously as when they talk face to face and do not know the law does not matter. It is possible to get penalized even for a message sent a long time ago. The victim can file a complaint within 6 months of learning about the act and the identity of the perpetrator, with the authorized public prosecutor’s office together with the evidences of these defamating acts.
- Retweeting an insulting tweet:
Re-sharing (retweeting) the post of a person who has insulted someone on Twitter on their own profile is considered a crime on the grounds that it enables users to reach a wider audience with the insulting post. This view is also justifiable in our legal opinion.
On a case taken to the High Court of Appeals, the Court ruled that the retweeting of a tweet that contains insults to public workers is an offense and should be penalized . Therefore the Superior Court decision to not penalized the retweeter should be reversed. 5
On another case of the High Court of Appeals, the Court evaluates that the retweeting of an insulting tweet from the suspects main account with his name and surname written, is considered sufficient suspicion to press charges against the defendant. 6
In this article, we have written about the ways in which the crime of defamation, which has a very wide range of applications, is committed by using social media within the framework of the decisions of the High Court of Appeals. Since the occurrence of the crime of defamation does not happen under a single condition, it is very important to know the legal regulations on this issue and to use social media carefully in order not to face criminal sanctions in the future. It should not be forgotten that as a result of sharing unconscious statements over the internet, one may face the risk of being prosecuted in the future.
1 (Yargıtay 4. Ceza Dairesi – 2013/38057 E. 2014/32649 K. )
2 (Yargıtay 18. Ceza Dairesi – 2019/11905 K.)
3 (Yargıtay 18. Ceza Dairesi –2019/4842 K.)
4 (Yargıtay 18. Ceza Dairesi –2019/1839 K.)
5 (Yargıtay 18. Ceza Dairesi 2015/10377 E. 2015/12777 K.).
6 (Yargıtay 18. Ceza Dairesi – 2019/1445 K.)
