Due to the increasing use of social media with the developing technology, many crimes have started to be committed via the internet. There has been an increase in crimes committed through these platforms due to the use of social media, where many people communicate with each other, especially during the quarantine days during Covid-19.
Due to the fact that it is a platform that allows people to communicate with each other, the most common type of crime perpetrated on social media is “Insult”. In short, we can call it insulting on social media or insulting through social media. In this article, we wanted to share with you by evaluating the nature of the act of defamation in social media and the legal remedies that can be applied, due to its widespread prevalence and many questions.
It should not be forgotten that people’s right to ” honor, honor and dignity ” is an important right. The crime of insulting this right is a type of crime that should not go unpunished in terms of personal and public interest.
In our old Turkish Penal Code numbered 765, offenses of insult and cursing were regulated separately. Today, within the same article, the 125th article of the Turkish Penal Code No. 5237, which is under the main heading of crimes against honor. regulated in the article. It is defined as attacking a person’s honor, honor and dignity by attributing or cursing a concrete act or phenomenon that may offend someone’s honor, dignity and dignity. The crime of insult can be carried out in the absence of the person, as well as in the face of the person.
In order for the act committed in the absence of the victim to constitute a crime of insult, the act must be committed with at least three people, that is, it must be known by at least three people.
2 of the same article. In the second paragraph, “If the act is committed with an audio, written or visual message addressed to the victim, the penalty specified in the above paragraph is imposed .” is called.
The age we live in has allocated a new space for this crime to exist. With this area, that is, the act of insulting committed through social media can be carried out by a message that the person publishes from his/her own account or by making a message, message or comment sent to the victim’s profile. If the insult is committed with an audio, written or visual message addressed to the victim on the internet, it will be punished as if it was done face to face.
Pursuant to Article 126 of the TCK, even if the victim’s name is not explicitly stated or the accusation is implicitly covered in the commission of the offense of insult, if there is a situation in its nature that does not prevent the victim from being personally directed, it is assumed that both the name is mentioned and the elements of the insult crime are formed. This provision is also an important detail for messages and messages where it is clear who is meant, although a name is not directly mentioned.
However, in order for an act to be considered a crime and punished, it must first be subject to a criminal trial. In addition, as a result of this trial, a final decision must be made regarding the commission of a crime. Insulting crimes are considered as crimes subject to complaint by the legislator. The person who has been insulted must first file a complaint with the Public Prosecutor’s Office or the law enforcement (police gendarmerie, etc.) forces in this regard (Article 131/1 of the TCK). Otherwise, no investigation or prosecution can be made about the insulting act in question. For this reason, the person who has been subjected to insult must file a complaint within 6 months at the latest.
Ways of Proof of Insulting Crime Committed on Social Media
The thought of how to prove the crime of defamation carried out through social media accounts may cause concern for the victims. However, when you think about it, the internet and technology provide quite an opportunity to prove the elephant in question. In this respect, one of the most important evidence is the screenshot or printout of the insulting message in the social media account.
Because social media is a dynamic and volatile platform, it is very difficult to prove that a crime has been committed. For this reason, the victim of defamation crime should establish a concrete proof mechanism by clearly identifying the time and manner in which the crime was committed and proving it in written or visual form. As is known, the clearest form of proof in the framework of social media is to provide proof with screenshots. This form of evidence is both the fastest and the easiest to obtain.
Although the screenshot is an important piece of evidence for the crime of insult, it may not be enough to prove that the crime has been committed in all cases. Even if there is an opinion that the insult is present, it may not always be determined by whom it was committed. In other words, it may be difficult to determine who actually owns the social media account where the insult is committed or who sent the insulting message.
For this reason, determining who is using the social media account where the insult was committed is the biggest proof requirement. Because it is unknown to whom or to whom the crime committed with unknown accounts will be attributed. When determining this issue, first of all, it is necessary to determine from which IP number the insulting message was sent to the social media account in question, and then to learn from the internet service provider who this IP belongs to.
Public Prosecutors and relevant courts dealing with cybercrimes will be able to carry out this process. The owner of the IP address may have used the said social media account himself, or he may have made it available to someone else, such as a family relative or a friend or colleague. This issue will be clarified by taking the statements of these people. This means that it is always possible to refer to other evidences besides the above-mentioned evidence.
Punishment and Compensation Case for Defamation on Social Media
If it is concluded that a crime has been committed against those who somehow insult a person or group of people through their social media account, an indictment may be drawn up by the Public Prosecutor’s Office and they may be sentenced by the relevant courts to imprisonment from three months to two years or to a judicial fine in accordance with the Turkish Penal Code.
On the other hand, the person who is the victim of an insulting act has the right to file a civil lawsuit due to the damage to his personal rights and to demand pecuniary or non-pecuniary damages in this way, apart from the criminal case.
In order to embody the viewpoint of the judiciary on this situation and to exemplify the events brought to the judiciary, we find it useful to share a few decisions of the Supreme Court with you.
- The decision of the 4th Law Chamber of the Supreme Court of Appeals dated 06.03.2019 is a precedent in terms of non-pecuniary damages. In the incident in question, messages containing smug words were sent to the plaintiff’s Facebook page, and both the person who sent the insulting messages and the owner of the IP number were found responsible and it was decided to award moral damages.
- In the decision of the 18th Criminal Chamber of the Court of Cassation dated 07.12.2015, it was determined that the elements of the crime of insult occurred as a result of the defendant’s publishing (retweeting) a post shared by the other defendant (insulting) under his own name on the Twitter social networking site, and it was fixed with his own confession. decided.
Legal remedies against crimes committed through social media, and especially insults, are not as difficult as one might think. The most important point in this regard is to provide the evidence and additional information to be used as a means of proof in a correct and clear manner before resorting to legal action. The next step is to apply one or more legal remedies by applying the methods mentioned above.
It is known that many people who are exposed to insults on social media have to remain silent in the face of the act because they do not know how to proceed. However, as it can be seen, defending your personal rights by taking legal action against acts constituting insult is a very possible and easy way to seek rights.
Hunting. Ayşe Bilge Şahin – Atty. Aline Braggiotti
K&P LEGAL LAW FIRM