AN EVALUATION OF CYBERBULLYING FROM A CRIMINAL LAW PERSPECTIVE

1. INTRODUCTION

The widespread use of the internet and social media has increased communication opportunities, but it has also given rise to new types of violations, such as the systematic harassment, threats, humiliation, or sharing of private information of individuals in the digital environment. In general, cyberbullying refers to harmful and disturbing behaviors directed at a person using social media, messaging applications, email, online games, or other digital tools.

The Turkish Penal Code does not contain a separate crime type defined as "cyberbullying." However, actions constituting cyberbullying may fall under the categories of threat, blackmail, insult, sexual harassment, disturbing the peace, stalking, violation of privacy, or unlawfully disclosing, disseminating, and obtaining personal data, depending on the specific circumstances of the case. Therefore, in evaluating cyberbullying from a criminal law perspective, the nature of the act committed by the perpetrator should be considered more important than the digital tool used.

Using expressions on social media that damage a person's honor, reputation, and dignity constitutes the crime of insult; threatening to harm the person or their relatives constitutes the crime of threat. If a person threatens to disclose private images of the victim and demands money, behavior, or other benefits, this may constitute blackmail. Sending sexually explicit messages or images without consent may also be considered sexual harassment, depending on the circumstances.

Persistent stalking and communication with a person through social media accounts, messaging applications, or other information systems can also lead to criminal liability. Article 123/A of the Turkish Penal Code, which defines the crime of persistent stalking, stipulates that attempts to establish continuous contact using communication tools or information systems, and the resulting serious distress or security concerns for the victim, are punishable offenses.

Cyberbullying can also take the form of sharing a victim's photos, videos, correspondence, or personal information without their permission. In this case, crimes of violating the right to privacy and unlawfully disclosing or disseminating personal data may arise. Sharing the content from a fake or anonymous account does not automatically eliminate the criminal nature of the act or the perpetrator's criminal liability.

Cyberbullying, especially when perpetrated against children, can have more severe consequences for the victim's psychological and social development. If the perpetrator is also a child, criminal liability should be assessed within the framework of the provisions of the Turkish Penal Code regarding age and the Child Protection Law No. 5395. In each specific case, the perpetrator's age, their ability to perceive and control their behavior, and the nature of the act committed are examined together.

It is crucial for victims of cyberbullying to immediately save the link to the social media post, username, messages, date and time information, and screenshots. If the content is likely to be deleted, methods such as notarization, court-ordered evidence collection, or technical analysis can be used. If the act constitutes a crime, it is possible to file a complaint with the Public Prosecutor's Office or law enforcement agencies.

In conclusion, when evaluating cyberbullying from a criminal law perspective, it is not possible to refer to a single type of crime. Crimes such as insult, threat, blackmail, stalking, violation of privacy, and unlawful sharing of personal data may arise separately depending on the act committed. For an effective criminal investigation, it is necessary to protect digital evidence, investigate the connection between the perpetrator's account and the crime, and evaluate each act separately in terms of the legal elements of the relevant crime.

2. THE CONCEPT OF CYBERBULLYING

I. WHAT IS CYBERBULLYING?

Cyberbullying is a general term for behaviors such as threats, insults, humiliation, exclusion, exposure, harassment, and disturbing behaviors directed at an individual using the internet, social media, messaging applications, email, online games, or other digital communication tools. These actions can be one-off occurrences or systematic and continuous.

Cyberbullying can manifest in various ways, including making derogatory posts about the victim, creating fake accounts, publishing private photos or correspondence without permission, sending threatening messages, sharing personal information, and constantly stalking someone online.

Unlike traditional bullying, cyberbullying can occur without time or location restrictions. The fact that shared content quickly reaches a wide audience, is reposted, and remains accessible for a long time can cause the harm to the victim to become more severe and lasting.

Turkish law does not regulate cyberbullying as a separate crime. However, actions constituting cyberbullying can, depending on their nature, constitute crimes such as insult, threat, blackmail, stalking, violation of privacy, or unlawful sharing of personal data.

II. ELEMENTS OF CYBERBULLYING

The elements of cyberbullying are evaluated according to the nature and duration of the behavior carried out in the digital environment, and its effects on the victim. For cyberbullying to occur, the use of a digital communication tool such as the internet, social media, messaging applications, email, online games, or similar means is required.

One of the fundamental elements of cyberbullying is the presence of behavior that disturbs, humiliates, frightens, or harms the victim. Sending insulting messages, making threats, creating fake accounts, sharing private images, publishing personal information, and targeting the victim online can all be considered within this scope.

It is also important that the behavior is directed at a specific person. The post or message must directly target the victim, or the content must make it clear who is being referred to. The fact that the victim's name is not explicitly stated does not negate the existence of cyberbullying if their identity can be determined from the language or images used.

While cyberbullying often manifests through repeated and systematic behaviors, some actions can have serious consequences even in a single instance. For example, the unauthorized publication of a private image or threatening someone can lead to legal and criminal liability without the need for repetition. Continuity is particularly important in evaluating actions involving persistent stalking and constant harassment.

Whether the perpetrator acts knowingly and intentionally is also taken into account in the evaluation of cyberbullying. It is possible for the perpetrator to act with the intention of intimidating, humiliating, discrediting, pressuring, or harassing the victim. However, the mental element, which is required for each type of crime when determining criminal responsibility, should be examined separately.

Another element of cyberbullying is the negative impact the behavior has on the victim. Fear, anxiety, security concerns, social exclusion, or loss of reputation experienced by the victim can be considered in determining the severity of the act. However, for some crimes to occur, it may not be necessary to prove that the victim has suffered concrete harm.

In conclusion, the elements of cyberbullying can be described as: the use of a digital tool, harmful behavior targeting a specific individual, the perpetrator's intentional action, and the negative consequences of the action on the victim's rights. However, when making a legal assessment, each behavior must be examined separately in terms of the legal elements of the relevant crime type.

3. EVALUATION OF CYBERBULLYING FROM A CRIMINAL LAW PERSPECTIVE

The assessment of cyberbullying from a criminal law perspective depends on the content, duration, and impact of the act on the victim in the digital environment. The Turkish Penal Code does not define "cyberbullying" as a separate crime. However, bullying acts carried out using social media, messaging applications, email, and other information systems may constitute different crimes depending on the specific circumstances of the case. In determining criminal responsibility, what is important is not the technological tool used, but rather which crime's legal elements the perpetrator's behavior embodies.

Making statements or sharing derogatory content on social media that damages the honor, reputation, and dignity of the victim may constitute the crime of defamation, as defined in Article 125 of the Turkish Penal Code. The fact that the defamation is carried out through written, audio, or visual communication does not negate criminal liability. However, the distinction between rude language, harsh criticism, and defamation must be made by considering the context of the expressions, the manner in which they are delivered, the relationship between the parties, and the purpose of the sharing.

Threatening to harm the victim or their relatives constitutes the crime of threat, while demanding money or a specific action by threatening to disclose the victim's private images constitutes the crime of blackmail. Sending sexually explicit messages without consent and in a disturbing manner may be considered a crime of sexual harassment, depending on the circumstances of the incident. Thus, it is possible for multiple crimes such as insult, threat, blackmail, and sexual harassment to occur within a single cyberbullying incident.

Continuously sending messages to someone, attempting to contact them from different accounts, or systematically stalking them in a digital environment may constitute disturbing the peace and tranquility of individuals or the crime of stalking. According to Article 123/A of the Turkish Penal Code, persistently attempting to establish contact using communication tools or information systems, and causing serious distress or concern for safety to the victim, is subject to criminal penalties.

Cyberbullying may constitute a violation of privacy if it involves the unauthorized publication of the victim's private photos, videos, audio recordings, or correspondence. Unlawful sharing of the victim's phone number, address, identity information, or other personal data may constitute the crimes of recording, disclosing, disseminating, or obtaining personal data. If the perpetrator gains unauthorized access to the victim's social media account or email address, the crimes of unauthorized access to an information system and tampering with or altering data within that system should also be considered.

Cyberbullying carried out through a fake or anonymous account does not absolve the perpetrator of criminal responsibility. During the investigation, it is possible to identify the person using the account through IP addresses, account records, device examinations, login information, and data obtained from the platforms. However, the mere fact that the account is registered in someone's name does not always definitively prove that the crime was committed by that person; therefore, digital evidence must be evaluated in conjunction with other evidence.

If acts of cyberbullying are repeated against the same person at different times, the application of the provisions regarding continuous offenses may also come into question. However, each message or post does not automatically constitute a separate crime. The time, purpose, and legal interruption between the actions, as well as whether the perpetrator acted with the same criminal intent, must be examined in the specific case. Article 43 of the Turkish Penal Code regulates the principles regarding continuous offenses when the same crime is committed against the same person multiple times at different times.

It is important for victims of cyberbullying to immediately save links to shared content, usernames, date and time information of messages, and screenshots. If there is a possibility of the content being deleted or altered, methods such as notarization, evidence gathering, or technical examination can be used. Depending on the nature of the act, a complaint can be filed with the Public Prosecutor's Office or law enforcement agencies. Since the complaint period and mediation provisions may vary depending on the type of crime committed, each act should be evaluated separately.

In conclusion, when evaluating cyberbullying from a criminal law perspective, a single, general charge should not suffice. Separate investigations should be conducted into insult, threat, blackmail, sexual harassment, stalking, violation of privacy, unlawful sharing of personal data, and other cybercrimes. For an effective investigation, it is necessary to secure digital evidence in a timely manner, to establish the connection between the perpetrator and the account used through technical data, and to evaluate each act within the framework of the legal elements of the relevant crime.

4. REGULATIONS REGARDING CYBERBULLYING IN TURKISH LAW

In Turkish law, regulations concerning cyberbullying are not grouped under a single law or independent crime type. While there is no specifically defined crime called "cyberbullying," actions carried out in the digital environment can constitute different crimes under the Turkish Penal Code depending on their content, repetition, method used, and impact on the victim. Therefore, in legal assessment, it is more important to determine which crime's legal elements the action meets, rather than whether it is labeled as cyberbullying.

Cyberbullying primarily involves insulting, threatening, and pressuring someone through social media, messaging applications, or email. Statements that damage a person's honor, reputation, and dignity constitute the crime of insult under Article 125 of the Turkish Penal Code; threats of harm to the victim or their relatives constitute the crime of threat under Article 106. If the victim is threatened with the publication of private images in exchange for money or a specific action, the crime of blackmail, as defined in Article 107, may come into play.

Sending sexually explicit messages, images, or offers to a victim without their consent and in a disturbing manner may constitute the crime of sexual harassment, depending on the specific circumstances of the case. Sexual harassment carried out particularly through social media accounts, email, and messaging applications can have a broader and more lasting impact due to the ease of communication provided by these methods.

Cyberbullying can be considered a crime of disturbing the peace or stalking if it takes the form of repeatedly sending messages, communicating from different accounts, stalking online, or systematically monitoring the victim's social media activity. Article 123/A of the Turkish Penal Code also criminalizes persistent attempts to contact someone using communication tools or information systems, which cause significant distress or security concerns for the victim.

Unauthorized acquisition and publication of private photographs, videos, audio recordings, or correspondence belonging to a victim may constitute a crime of violating the privacy of private life. If telephone numbers, addresses, identity information, health data, or other personal information are unlawfully recorded or shared with third parties, the provisions regarding the recording, disclosure, dissemination, or acquisition of personal data may apply. Unauthorized access to a victim's social media account or email address may constitute the crime of unauthorized access to an information system; deleting, altering, or rendering inaccessible the account content may constitute the crime of interfering with data in an information system.

The Law No. 6698 on the Protection of Personal Data also provides important protection in the fight against cyberbullying. Sharing a person's photograph, image, phone number, address, or other information on social media without a legal reason may lead to a personal data breach. The data subject may request the deletion of their data or the cessation of the unlawful use; after applying to the data controller under the necessary conditions, they may file a complaint with the Personal Data Protection Board. In its decisions regarding the sharing of personal photographs on social media accounts without a legal basis, the Personal Data Protection Board evaluates the need for data deletion and the implementation of necessary measures.

Law No. 5651 regulates the obligations of content providers, hosting providers, and access providers regarding publications made on the internet. Depending on the nature of the cyberbullying content, measures such as removing the unlawful content from publication, restricting access, or notifying the platform may be taken. The procedure to be applied should be determined according to whether the content constitutes a violation of personal rights, privacy, or a crime.

In cases of cyberbullying involving unilateral, persistent stalking or violence, protective and preventive measures can be requested under Law No. 6284. This law aims to protect women, children, family members, and victims of unilateral, persistent stalking. Depending on the specifics of the case, it is possible to issue a restraining order preventing the perpetrator from approaching the victim, harassing them through communication tools, and engaging in certain communication behaviors.

When the victim or perpetrator of cyberbullying is a child, the provisions of Law No. 5395 on Child Protection must also be taken into consideration. To address the child's suffering, ensure their safety, and provide psychological support, protective and supportive measures such as counseling, education, care, health, and shelter can be implemented. If the perpetrator is a child, criminal responsibility is assessed under the provisions regarding age of minority, and the best interests of the child are considered.

Cyberbullying, when it also constitutes an attack on personal rights, can be protected under private law within the scope of the Turkish Civil Code and the Turkish Code of Obligations. The victim can request the prevention of an anticipated attack, the cessation of an ongoing attack, and the determination of the illegality of an attack whose effects are still being felt. If material or moral damage has resulted from the violation, a claim for compensation can also be made.

It is important for victims of cyberbullying to immediately save the username, profile link, message content, date and time of posting, and screenshots. Since the content may be deleted later, having it documented through a notary or court can help secure digital evidence. The complaint period, mediation provisions, and competent authority may vary depending on the type of crime committed, so each case must be evaluated individually.

In conclusion, regulations concerning cyberbullying in Turkish law consist of the Turkish Penal Code, Law No. 5651, Law No. 6698 on the Protection of Personal Data, Law No. 6284, the Child Protection Law, and private law provisions protecting personal rights. Although cyberbullying is not regulated as an independent crime, every action taken by the perpetrator may give rise to legal, criminal, and administrative liability within the scope of the relevant crime and protection provisions.

5. CONCLUSION

Cyberbullying has become a significant problem threatening individuals' honor, reputation, privacy, personal data, and psychological well-being with the proliferation of digital communication tools. Behaviors such as insults, threats, blackmail, stalking, exclusion, sharing of private images, and disclosure of personal information carried out through social media platforms, messaging applications, email, and online games can be considered within the scope of cyberbullying.

While cyberbullying is not a distinct crime in Turkish law, actions of this nature can constitute different offenses under the Turkish Penal Code, depending on the specific circumstances of the case. Insult, threat, blackmail, sexual harassment, disturbing the peace, stalking, violation of privacy, unlawful disclosure or dissemination of personal data, and unauthorized access to information systems are some of the main offenses that may fall under this category. Therefore, when evaluating cyberbullying from a criminal law perspective, not only the fact that the act was committed in a digital environment but also the content, purpose, continuity, and impact on the victim of the behavior should be considered.

Cyberbullying carried out through anonymous or fake accounts does not absolve the perpetrator of criminal responsibility. However, the connection between the perpetrator and the account used must be established through IP records, device analyses, account activity, and other digital evidence. The mere fact that the account is registered in a specific person's name is not always sufficient to conclude that the act was committed by that person. Digital evidence must be evaluated in conjunction with other evidence, and the principle of benefiting the accused from doubt must be observed.

It is crucial for victims of cyberbullying to promptly save links to shared content, usernames, message content, date and time information, and screenshots. Because content can be quickly deleted or altered, it is advisable to have the evidence recorded by a notary, through a court order, or using appropriate technical methods. This evidence can form the basis of a criminal investigation to identify the perpetrator and prove the act.

Cyberbullying can be addressed not only through criminal law but also through private law and personal data protection laws. The victim can request the cessation of the attack on their personal rights, the removal of the unlawful content, compensation for material and moral damages, or the deletion of their personal data. Depending on the nature of the act, protective and preventive measures under Law No. 5651, Law No. 6698 on the Protection of Personal Data, and Law No. 6284 may also be considered.

Cyberbullying, especially for children, can have long-term negative consequences on their psychological, social, and educational lives. Therefore, families, educational institutions, and public authorities need to develop preventive policies; children should be educated about safe internet use, digital privacy, and online communication rules. When the perpetrator is also a child, it is important to implement educational, protective, and rehabilitative measures in addition to a punitive approach.

In conclusion, effectively combating cyberbullying requires a comprehensive consideration of regulations related to criminal law, private law, data protection law, and internet law. While current legislation provides legal protection against many actions constituting cyberbullying, the constant evolution of digital technologies brings new risks and implementation challenges. Therefore, updating legal regulations to reflect technological advancements, clarifying platform responsibilities, effectively collecting digital evidence, and providing prompt protection to victims are of paramount importance.

The goal of combating cyberbullying is not only to punish perpetrators, but also to transform digital environments into safe, respectful, and rights-compliant communication spaces. Raising awareness among individuals, providing legal and psychological support to victims, and effectively implementing deterrent sanctions will significantly contribute to preventing cyberbullying.