SOCIAL MEDIA MESSAGES AND DETECTION OF OFFENSES UNDER TURKISH LAW (FEBRUARY 2015)

In order to adapt to the novelties of our age and technological developments, a great deal of our lives are lived in the Internet environment. The smartphones or notebook computers through various GSM operators enable Internet access almost wherever we are. In such an atmosphere, we create accounts at various social media websites with our real names or nicknames, and share hundreds of messages. However, are we prudent enough when we post these messages in a country such as Turkey?

Social media fans should be careful of their messages on websites such as Facebook, Twitter, etc. in Turkey which is considered as reflections of freedom of expression in many other countries. If such messages contain offenses of defamation or threat, such acts cannot be assessed in terms of freedom of thought and expression. Considering enormous number of the filed lawsuits based on the social media messages, a very significant number of actions for damages have been also filed by the aggrieved parties.

On the contrary, it is manifest that such messages, when shared on the Internet, constitute aggravating circumstances of the offense due to being openly committed in public. Under the Article 125/4 of the Turkish Penal Code “The punishment is increased by one sixth in case of performance of defamation act openly.” One should always consider that this paragraph would lead to heavier penalties! Again, it is impossible to assert that messages sent by anonymous nicknames that are fed by the logic of “no real name, no real harm” shall not be prosecuted and penalized. With advanced technology which leads to ability to follow the perpetrators over the IP addresses, we glance that almost definite results are achieved in order to define the suspects. Furthermore, there is rejection or failure of various social media websites (listed above as Facebook, Twitter, etc. in a non-exhaustive fashion) to provide clear replies to official queries of the Public Prosecutor’s Office rulings and the Court demands. The assertions of some newspapers which is expressly far away from the truth. Any perpetrator who is identified with the social media account by various proofs shall be deemed responsible for the offense committed by a nicknamed account.

Particularly, we can provide an example from Mr. Melih Gökçek, the metropolitan mayor of Ankara, who is very fond of twitter and has currently filed thousands of crime complaints before Public Prosecutor’s Offices. It is familiar (especially for the ones who live in Ankara) that he has founded a special tracking team which monitors all the social media accounts and whenever a message containing defamation or threat is detected by them; he files a complaint. Although we are fully aware that our Constitution provides the basic right which is freedom of expression and dissemination of our thoughts, we want to remind all that such liberty has its very limits in Turkey (for the time being) and this freedom shall in no case legitimize defamation of other people. According to recent rulings of the courts regarding the crimes performed over internet, we do not have the right or chance to live by the motto “I write whatever I want since this is my opinion”. Everybody is under the obligation to respect the rights of others.

Penalty for defamation covering events where committed via Internet is stipulated in the Article 125 of the Turkish Penal Code that reads: “Any person who acts with the intention to harm the honor, reputation or dignity of another person through concrete performance or giving impression of intent, is sentenced to imprisonment from three months to two years or imposed to punitive fine. In order to punish the offense committed in absentia of the victim, the act should be committed in presence of least three persons. The offender is subject to above stipulated punishment in case of commission of offense in writing or by use of audio or visual means directed to the aggrieved party. In case of commission of offense with defamatory intent; Against a public officer, Due to disclosure, change or attempt to spread religious, social, philosophical belief, opinion and convictions and to obey the orders and restriction of the one’s religion, By mentioning sacred values in view of the religion with which a person is connected, the minimum limit of punishment may not be less than one year. The punishment is increased by one sixth in case of performance of defamation act openly; if the offense is committed through press and use of any one of publication organs, then the punishment is increased up to one third. In case of defamation of public officers working as a committee to perform a duty, the offense is considered to have committed against the members forming the committee.”

In conclusion, we would like to state that committing the offense of defamation via Internet results in aggravating circumstances due to publicizing the act and we remind once again that liberties provided to people are never without limits.  The prosecution of the committed offense is subject to complaint but the problem is that many of the politicians deem necessary to initiate such kind of actions.  Accordingly, expression of opinion on the social media nevertheless requires necessary attention and diligence in Turkey.