Crime of Violating the Right to Privacy

The right to privacy is among the fundamental human rights in modern legal systems. The protection of individuals' private lives, intimate spaces, and personal information is guaranteed by both the Constitution and international conventions. However, the widespread use of technology and digital communication tools has made it easier to violate this right. Article 134 of the Turkish Penal Code (TCK)regulates the crime of violating the right to privacy and prescribes serious penalties.

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1. The Legal Basis for the Right to Privacy

Article 20 of the Constitution:
“Everyone has the right to respect for their private and family life. The privacy of private and family life cannot be violated.”

134/1 of the Turkish Penal Code :
"Anyone who violates the privacy of a person's private life shall be punished with imprisonment from one to three years."

This regulation protects an individual's privacy against acts such as unauthorized viewing, listening, or disclosure.

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2. Elements of the Crime

2.1. Perpetrator and Victim

The perpetrator can be anyone. The victim is the person whose privacy has been violated without permission, whose image has been recorded, or whose private information has been published.

2.2. Verb

• Secretly recording audio or video,

• Entering someone else's private space without permission,

• Disclosing private images or information.

2.3. Scope of Private Life

According to the Supreme Court, private life includes a person's family, sexual life, health, personal habits, private correspondence, and photographs and videos related to their private life.

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3. Aggravating Circumstances of the Crime

Turkish Penal Code Article 134/2:
“The act of recording a person's image or voice shall be punishable by imprisonment from 1 to 3 years. If these recordings are disclosed, the sentence shall be increased to 2 to 5 years.”

Unauthorized photo sharing, particularly on social media, secretly filming with a mobile phone, or disseminating private correspondence are among the most common aggravated forms of this crime.

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4. Violations in Social Media and the Digital World

Today, there has been an increase in violations committed through WhatsApp messages, private photos, and social media posts

• Taking screenshots of private conversations and sharing them,

• The dissemination of personal data through social media,

• Recording using a camera or microphone without permission constitutes a crime of violating the right to privacy.

The Personal Data Protection Law (KVKK) also stipulates administrative sanctions for the unlawful recording and sharing of personal information.

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5. Application in Light of Supreme Court Decisions

The 12th Criminal Chamber of the Court of Cassation, Case No. 2018/3121, Decision No. 2019/1507, stated:
“The defendant’s sharing of his ex-wife’s private correspondence on social media constitutes the crime of violating the privacy of private life.”

The 4th Criminal Chamber of the Supreme Court of Appeals, Case No. 2020/354, Decision No. 2021/874, stated:
"Secretly taking photographs of someone through their window constitutes a crime of violating the right to privacy."

The 11th Criminal Chamber of the Supreme Court of Appeals, Case No. 2017/4246, Decision No. 2018/2138, stated:
“Disclosure of an audio recording made without the victim's knowledge constitutes both a violation of the right to privacy and the unlawful sharing of personal data.”

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6. ECHR Case Law

Article 8 of the European Convention on Human Rights (ECHR)guarantees the protection of private life.

• Peck v. United Kingdom (2003): Unauthorized publication of security camera footage was deemed a violation of privacy.

• Von Hannover v. Germany (2004): The publication of photographs relating to the private life of a famous person was deemed a violation of rights because it did not serve the public interest.

• Barbulescu v. Romania (2017): Unauthorized monitoring and recording of an employee's private workplace correspondence was deemed a violation of privacy.

The ECHR emphasizes the need to strike a delicate balance between the public interest and the right to privacy.

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7. Problems Faced Today

1. Technological Advancements: Smartphones and social media have made privacy breaches easier.

2. Unauthorized Sharing: The rapid spread of personal images and information on social media platforms causes irreparable harm to victims.

3. Damage to Digital Reputation: Especially in the business world, sharing private photos negatively impacts a person's social status.

4. Evidence Issues: The collection and validity of evidence in digital environments sometimes raises questions.

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8. Criminal Sanctions and Legal Solutions

• Turkish Penal Code Article 134: 1-3 years imprisonment (2-5 years in case of disclosure).

• Compensation Claims: Victims can claim compensation for non-pecuniary damages due to wrongful acts.

• Access Blocking: for the removal of personal images and information from the internet Law No. 5651 .

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9. Comparison of the Perspectives of the Court of Cassation and the European Court of Human Rights

• The Supreme Courtconsiders the recording or disclosure of private images without the victim's consent to be a direct crime.

• The European Court of HumanRights, in cases where there is no public interest, makes decisions in favor of protecting the individual's private life and interprets the violation broadly.

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10. Prevention Methods and Awareness

• Awareness training: The public should be informed about digital privacy.

• Effective implementation of the provisions of the Personal Data Protection Law and the Turkish Penal Code: Rapid intervention is particularly important in social media violations.

• Access restrictions and content removal mechanisms: Victims should be provided with information on quick ways to file complaints.

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11. Conclusion

The right to privacy is indispensable for both the protection of individual dignity and the democratic social order. Article 134 of the Turkish Penal Codeprovides effective criminal protection against violations of this right. However, with technological advancements, preventing this crime has become more complex.

Suggestions:

1. Digital media literacy should be increased.

2. The complaint process for victims should be simplified.

3. New regulations should be made in line with the jurisprudence of the Supreme Court and the European Court of Human Rights.

The right to privacy strengthens not only the individual's confidentiality but also the public's sense of security. Therefore, preventing, punishing, and raising awareness about this crime are of great importance.

Gozdenur Turna