Subject 8: Offences against Dignity in the Digital Environment
“Offences against Dignity in the Digital Environment” refers to the offenses regulated between Articles 125–131 in the 8th Section of the Turkish Penal Code No. 5237. Crimes such as defamation and, initially, the offense of insult, which are considered attacks on individuals’ honor and personality rights, are categorized as crimes against dignity
- Defamation
The following are the elements of the offense of defamation as specified by Article 125 of the Turkish Penal Code:
“(1) Any person who attributes an act, or fact, to a person in a manner that may impugn that person’s honor, dignity or prestige, or attacks someone’s honor, dignity or prestige by swearing shall be sentenced to a penalty of imprisonment for a term of three months to two years or a judicial fine. To be culpable for a defamation made in the absence of the victim, the act should be committed in the presence of at least three further people.”
“Where the act is committed by means of an oral, written, or visual medium message addressing the victim, the penalty stated in the above paragraph shall be imposed.”
- Identification of the Victim
In offense of defamation, there is no obligation to explicitly state the name of the victim of defamation for the identification of the victim;
Article 126(1): Even if the name of the aggrieved party is not clearly indicated during the commission of the offense or the accusation is implicitly expressed, both the name of the aggrieved party and the act of defamation are assumed to have been declared, provided that there is a clear indication of defamation of a person’s character based on the quality of the offense.
- Proof of the Accusation
To prove the accusation in the offense of defamation, it is sufficient to meet certain conditions according to Article 127 of the Turkish Penal Code (TCK).
(1) If the accusation or act constituting offense is proved, the person responsible for such an act may not be subject to punishment. In the event that the person subject to defamation is convicted of such an offense, the imputation is regarded as proved. Besides this, acceptance of the demand for proof of accusation depends on the justness of the imputed act, whether or not it involves public interest, or whether consent of the complainant is received on this subject.
(2) Punishment is imposed in cases of defamation of a person by attributing it to his act, which is already proved.
- Plea and Defense Immunity
In accordance with TCK 128, the prosecution and defense authorities have immunity in the trial of crimes against honor.
Article 128- (1) No punishment shall be imposed in the context of written or oral appeals, claims, and defenses before the judiciary or the administrative authorities, in which specific indications or negative assessments are made concerning persons. However, for this to happen, the assessments must be based on factual and concrete facts and linked to the conflict.
- Mutual Defamation or Defamation Due to a Civil Tort
According to Article 129 of the Turkish Penal Code No. 5237,
(1) Where the defamation is committed as a response to a civil tort, the punishment may be reduced up to one-third or totally lifted.
(2) Where the defamation is committed in response to an intentional injury, no penalty shall be imposed.
(3) In cases of defamatory offenses committed mutually by the parties, the punishment to be imposed on both or anyone of the parties may be either reduced up to one-third or totally lifted.
- Defamation of a Person’s Memory
According to Article 28 of the Turkish Civil Code No. 4721, personality ceases with death. Therefore, the Turkish Penal Code considers the offense of defamation of a dead person’s memory as a crime against the personality rights of their close relatives rather than the personality rights of the dead people.
Article 130 of the Turkish Penal Code regulates the offense of “defamation of a dead person’s memory”.
(1) Any person who defames memory of a person after his death in the presence of at least three persons is sentenced to imprisonment for three months to two years or imposed punitive fine. The punishment is increased by one sixth in case of the commission of the said offense openly.
(2) Any person who receives the entire or part of the body or bones of the deceased person, or performs humiliating acts against his body or bones is punished with imprisonment for three months to two years.
- Conditions for Investigation and Prosecution
According to Article 131 of the Turkish Penal Code No. 5237,
(1) Excluding those offenses committed against a public officer on account of his duty, the investigation and prosecution of an offense of insult shall be subject to the filing of a complaint by the victim.
(2) If the victim dies before filing the complaint, or if the offense is committed against the memory of a deceased person, a complaint may be filed by the ascendants or descendants of the deceased (up to the second degree) or by his spouse or siblings.
- Turkish Supreme Court Decisions Regarding the Subject
- Distinguishing Between Rude Language And Defamation
Turkish Supreme Court 18th Criminal Division Case Number: 2018/7531, Decision Number: 2019/15892, Decision Date: 11.11.2019
The legal value protected by the punishment of defamation is the honor, dignity, and reputation of individuals. For this crime to occur, the behavior must aim to demean the person. In some cases, whether or not a movement is provocative is relative and can vary depending on time, place, and situation. Not all forms of severe criticism or disturbing words towards individuals should be considered defamation in the context of this offense. The words must explicitly constitute an act or an accusation that can, in a concrete manner, harm one’s honor, dignity, or reputation.
On the day of the incident, the defendant spoke to the complainant M. over the phone, stating, “You are such an impudent person; don’t you have any shame? You’ve embarrassed us in front of everyone. How dare you go to my mother’s farm and cause trouble?” were acknowledged by the court. These words were of a rude nature. However, it was not considered that the elements of defamation were fulfilled since they did not significantly harm the complainant’s honor, dignity, and reputation. Despite this, a written judgment was issued against the defendant.
In the defendant’s statement during the prosecution phase, he admitted to throwing stones at the injured party. However, a written judgment of acquittal was issued instead of a conviction for attempted intentional injury. This decision is unlawful. Given that the reasons for appeal by the defendant… and the local Public Prosecutor of that place are valid, it is necessary to annul the judgments in accordance with the notice and preserve the acquired rights in accordance with Article 8 of Law No. 5320 and Article 326/last of the Code of Criminal Procedure No. 1412 currently in force, and the trial should be continued from the stage before the annulment and concluded. On November 11, 2019, a unanimous decision was reached.
Turkish Supreme Court, 18th Criminal Division, Case No. 2019/9964, Decision Number 2020/8169, Date: 25.6.2020
As stated in the decision of the General Assembly of Criminal Courts dated 14/10/2008, numbered 170-220, the legal value protected by the punishment of the act of defamation is the honor, dignity, and reputation of individuals, their status within society, and their respect, among others. For this offense to occur, the behavior must aim to demean the person. If an action is carried out in a manner that can significantly harm an individual’s honor, dignity, and reputation, such as accusing them of a specific act or insulting them, then the offense of defamation will be considered committed.
Whether an action is demeaning can vary depending on the time, place, and circumstances. All forms of severe criticism or disturbing words directed at public officials or civilians should not be considered defamation in the context of this offense. Instead, the words must explicitly constitute an act or an accusation that can, in a concrete manner, harm one’s honor, dignity, or reputation.
In the specific case under review, the words spoken by the defendant to the police officer conducting an investigation, which were acknowledged as “you’re lying, you’re a liar,” are considered to be of a discourteous and rude nature, and they cannot be accepted as an act of defamation or an accusation of a specific act. Furthermore, since these words did not significantly harm the honor, dignity, and reputation of the complainant, the elements of the offense of defamation were not established. Therefore, the decision to convict the defendant instead of acquittal requires annulment.
Turkish Supreme Court, 13th Criminal Division, Case No. 2020/2347, Decision Number 2020/6100, Date: 23.6.2020
The decision to convict the defendant instead of acquittal is erroneous, as it was not considered that the words spoken by the defendant to the complainant, which were acknowledged as “everything is coming from you; you are causing us trouble; we’ve been like this for 15-20 days, and when it’s your shift, you make it difficult for us; you are being annoying,” did not significantly harm the dignity, honor, and reputation of the recipient. These words were of a disturbing, rude, and discourteous nature, but they did not meet the elements of the offense of insult.
- Defamation as a Reaction to Tort
Supreme Court 4th Criminal Division Case No: 2010/22676 Decision No: 2011/816 Date: February 2, 2011
In this case, it is stated that the accused and the complainant visited the police station due to a green card application. They were informed that the process was being handled on the second floor. When they went upstairs, the complainant was alleged to have grabbed the accused by the operating arm and pushed him down the stairs, causing the accused pain. In response to this, the accused might have verbally expressed “dishonorable” while being in pain. The defense argues that the detailed ruling takes into account the evidence and deems the complainant’s actions tortious. Given this, the specific provision in Article 129/2 of the Turkish Penal Code (TCK), which is specially regulated for the crime of defamation, should have been applied rather than the general provocation provision.
- Distinction Between Defamation and Cursing
Supreme Court 18th Criminal Division Case No: 2019/23504 Decision No: 2020/6679 Decision Date: June 8, 2020
The legal value protected by punishing acts of defamation is the honor, dignity, and respect of individuals. For this crime to occur, the behavior must aim to belittle the person. Whether an action is defamation can be relative in some cases and may vary depending on time, place, and circumstances. Not every form of severe criticism or offensive language directed at individuals should be considered defamation. It must involve concrete actions or statements that seriously offend a person’s honor, dignity, or respect. In the specific case, the accused’s words, “May God curse you,” can be categorized as a curse, but they did not seriously harm the honor, dignity, or respect of the complainant and the victim. Therefore, the elements of the crime of defamation were not established, and the decision to convict the accused instead of acquitting him was unlawful.
- Distinction Between Defamation and Criticism
Supreme Court 2nd Criminal Division Case No.: 2011/25113 Decision No: 2013/3805 Decision Date: February 26, 2013
In a specific case, when the accused visited the hospital for a medical examination and was told by the doctor on duty (the victim) that the shoulder injury was an old fracture and did not require immediate treatment, it led to criticism from the accused. He expressed, “I don’t recognize the Hippocratic Oath you took; who gave you your diploma? What kind of doctor are you?” When evaluating this situation, it was found that the statement was a severe criticism. Therefore, it was determined that this did not constitute the crime of defamation of a public official due to their duty, as required by Article 125/1 of Law No. 5237, and the decision to drop the case due to the withdrawal of the complaint was in error.
- The Requirement of Specificity
Supreme Court 18th Criminal Division Case No: 2019/15974 Decision No: 2020/1140 Decision Date: January 15, 2020
“… Article 125/1 of the Turkish Penal Code states: “Any person who attributes an act, or fact, to a person in a manner that may impugn that person’s honor, dignity, or prestige, or attacks someone’s honor, dignity, or prestige by swearing shall be sentenced to a penalty of imprisonment for a term of three months to two years or a judicial fine. To be culpable for a defamation made in the absence of the victim, the act should be committed in the presence of at least three further people”
The same law’s Article 126 states: ‘Even if the name of the victim is not clearly specified or is implied rather than expressly stated, if there is a situation that unequivocally indicates that the offense is directed against the person and the defamation is clearly expressed, it shall be deemed as specified.’
In the examined case, it is understood that the statements made by the suspect on his Facebook account under a news article containing the victim’s photograph do not unequivocally indicate that they are directed against the victim’s person, as required by Article 126 of the Turkish Penal Code. Therefore, it is concluded that the requirement of’matufiyet’ (specification) is not met in this case, and thus, the decision to reject the appeal by the relevant authority is correct, and the request for a cassation on points of law is rejected.”
- Denial of the Act
Supreme Court 18th Criminal Division Case No: 2019/13237 Decision No: 2020/1689 Decision Date: January 21, 2020
In the concrete incident, it is stated that during the investigation conducted on the internet page containing the image of the plaintiff’s client, named “…” person’s “küpek” (similar to “köpek” in Turkish), sharing directed at the plaintiff was found on the website www.facebook.com. Personal data and profile pictures were obtained as a result of the investigation, and the suspect was identified by law enforcement. The suspect gave a statement, claiming that they did not make the said sharing themselves and that the pictures shared on the account named “…” on Facebook did not belong to them. However, there is a question regarding whether the “küpek” expression might imply “köpek” (dog) and whether this expression constitutes defamation. Therefore, it is deemed necessary for the court to determine whether the said expression was shared by the suspect, considering the defense of the suspect. It is stated that the existing evidence found in the file is of a nature that necessitates the initiation of a public prosecution against the suspect for the crime attributed to them. Consequently, it is not deemed appropriate to accept the objection in writing but to reject it.
In the examined file, it is clear that a comment was made under a Facebook page containing the photo of the plaintiff from a Facebook account bearing the suspect’s name. In light of this, there is sufficient suspicion to prepare an indictment for the crime of defamation against the suspect, in accordance with Article 170/2 of the Turkish Criminal Procedure Code (CMK). Whether the suspect’s action is established or not should be determined as a result of the joint discussion and evaluation of all evidence by the court. In accordance with the explanations provided, the decision of non-prosecution against the suspect and the subsequent rejection of the objection to this decision by the competent authority are unlawful.
- Investigation for Sharing Defamation Content via Retweet
Supreme Court 18th Criminal Division Case No: 2018/7790 Decision No: 2019/1445 Decision Date: January 6, 2019
In the request letter, it is stated that, in accordance with Article 160 of the Turkish Code of Criminal Procedure No. 5271, “The Public Prosecutor, as soon as they become aware of a situation that gives the impression that a crime has been committed through a report or by any other means, shall immediately begin to investigate the reality of the matter in order to decide whether there is a place to initiate a public prosecution. The Public Prosecutor is responsible for gathering and preserving the evidence in favor of and against the suspect,suspect through the judicial law enforcement officers under their command, in order to investigate the material truth and ensure a fair trial, as well as protecting the rights of the suspect.”
In light of this regulation, it is stated that the Public Prosecutor is obliged to conduct an investigation. According to the case file, the complainant stated in their complaint letter that the defendant had a dispute with them, as they were both users of the social media platform Twitter and that the defendant had insulted them in the same manner on social media before. Despite this, the defendant shared offensive content directed at the complainant by retweeting posts made by other users on different dates, thus insulting the complainant. The complainant filed a complaint against the defendant, and during the investigation conducted by the Ankara Public Prosecutor’s Office, the defendant’s statement was taken, where the defendant admitted using the mentioned account and stated that the alleged posts were shared by retweeting for informational purposes, and they denied making those posts themselves. Considering that the posts in question contain offensive words such as “dirty, traitor, shameless, liar, arms smuggler, scoundrel, faithless, dishonorable, corrupt, slobbering, despicable…” directed at the complainant, the admission in the defense that these posts were retweeted by the defendant, and the existence of a previous public prosecution between the parties, it is apparent that there is sufficient evidence and suspicion that the defendant committed the crime attributed to them. Therefore, it is necessary to accept the objection and order further proceedings instead of rejecting it in writing.
In the examined file, it is clear that shares (retweets) mentioning the complainant were made from the Twitter account with the username @… where the defendant’s name and surname are written. In accordance with Article 170/2 of the Turkish Code of Criminal Procedure (CMK), there is clear suspicion in the file that an offense of defamation has been committed by the suspect. Whether the actions of the suspect are proven or not should be determined as a result of the joint discussion and evaluation of all evidence by the court. According to the explanations provided, the decision of non-prosecution against the suspect and the subsequent rejection of the objection to this decision by the competent authority are unlawful.
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