Defamation Through Social Media and Its Penal Sanction

With the advancement of technology, social media has become an indispensable part of our lives. Although people can share their thoughts, personal information, photos and moments about life freely and instantly with social media, this speed and convenience also pose a threat to people.

Expressing thoughts about a sharing or a post so quickly and easily sometimes confronts people with insults and threats.

The article 125/1 of the Turkish Criminal Code defines the crime of defamation as follows:

“A person who attributes a concrete act or fact to another person that can offend such person’s dignity, honor and reputation or attacks someone’s dignity, honor and reputation by swearing him, shall be sentenced to imprisonment from three months to two years or imposed judicial fine. To be culpable for a defamation committed in the absence of the victim, the act should be committed in the presence of at least three further persons”.

With the following provision contained in the second paragraph of the same article, which is:

“In case the act is committed by means of an audio, a written or a visual message directed to the aggrieved party, the court shall order the punishment stipulated in the above paragraph”, 

the commission of the crime “defamation” by means of an audio, a written or a visual message is deemed to be the same as the basic form of the crime.

As can be understood from the statutory definition of the crime; if such attribution of concrete act or fact or swearing is in such a degree that may objectively offend the addressee’s dignity, honor and reputation, this shall be considered within the scope of the crime of defamation. It should be stated importantly that statements of criticism nature are not covered by this crime. In other words, in case these statements attack a person’s dignity, honor and reputation, it means that the crime of defamation has occurred within the meaning of the article 125 of the Turkish Criminal Code.

With the article 125 of the Turkish Criminal Code, the penal sanctions shall be imposed on the acts corresponding to the statutory definition of the crime, without any differentiation with regard to commission of the crime through the internet or social media.  However, since this crime is subject to criminal complaint, the aggrieved party should file the relevant criminal complaint in order for the initiation of the investigation and prosecution proceedings.

Anyone can be the perpetrator or the victim of the crime of defamation. However, it is necessary that the victim of the crime is identified or identifiable. What should be understood from the above sentence is that everyone comprehends who is meant by the accusing act/acts.  Pursuant to the established jurisprudences of the Supreme Court of Appeals, the criterion of identifiability is considered as whether or not an average person would comprehend the addressee of the words at the moment that the average person sees the acts constituting crime.  (The 4th Civil Chamber of the Supreme Court of Appeals, the decision numbered 2016/2955 E., 2016/8684 K. and dated 26.12.2017)

The crime of defamation can be committed in the face of or in the absence of the aggrieved party. The following sentence is contained in the preamble of the mentioned article: “A defamation, which is committed by means of a letter, telephone, telegram or by similar means addressing to the aggrieved party, shall be punished as if it has been committed in the face of the aggrieved party”. Defamation on the internet can also be committed publicly by way of e-mail, video chat or instant messaging or over posts through social media. 

Pursuant to the fourth paragraph of the article 125, the punishment to be inflicted shall be increased by one sixth, in the event that the crime is committed publicly.

With regard to the crime of defamation committed through social media, what worries the persons the most is the matter “by whom these acts have been committed and the proof thereof”. First of all, it is necessary to find the IP data which provides information about “by means of which computer the act has been committed”. The IP data reveals by means of the relevant investigation to be carried out by the Public Prosecutor’s Office. The social networking sites, e.g. the US based Facebook, Twitter, Instagram and YouTube, store the IP addresses for a period of 90 days. Pursuant to the statements “As per the US legislation (18 U.S.C. § 2703 - f), the traffic data pertaining to the crimes committed in the internet environment are stored by hosting providers or access providers for a period of 90 days. When the public authorities file the relevant application within this period of time, another 90 days are added into this storage period”, which are contained in the letter which bears the heading “International Criminal Rogatory Proceedings for the Crimes Committed in the Internet Environment” and has been published by the Ministry of Justice, the General Directorate of International Law and Foreign relations; it is necessary to collect evidence and find IP data by paying attention to these periods. (The 12th Criminal Chamber of the Supreme Court of Appeals, the decision numbered 2015/4151 E., 2016/259 K. and dated 13.01.2016) 

References

1)   The 4th Civil Chamber of the Supreme Court of Appeals, the decision numbered 2016/2955 E., 2016/8684 K. and dated 26.12.2017

2)   The 12th Criminal Chamber of the Supreme Court of Appeals, the decision numbered 2015/4151 E., 2016/259 K and dated 13.01.2016