The Crime and Punishment of Insult via the Internet and Social Media
The widespread use of the internet and social media today, while expanding freedom of expression, has also led to an increase in attacks on the honor, dignity, and reputation of individuals. Posts, writings, images, or comments made on social media platforms often give rise to the crime of defamation. The crime of defamation, as defined in the Turkish Penal Code (TCK), is subject to the same penalties when committed online. Due to the ease with which the element of publicity can be achieved, defamation crimes originating from social media have increased significantly in recent years. This article will examine in detail the definition, elements, penalties, and Supreme Court rulings regarding the crime of defamation committed via the internet and social media.
Definition and Legal Basis of the Crime of Insult
The crime of insult is regulated in Article 125 of the Turkish Penal Code. According to the relevant article:
"A person who attributes a concrete act or fact to another person that is likely to offend their honor, reputation, and dignity, or who attacks a person's honor, reputation, and dignity by using abusive language, commits the crime of insult."
Within the framework of this provision, defamation can occur both a concrete accusation (for example, calling someone a "thief") and verbal abuse (curses and derogatory expressions). Posts, comments, and even private messages on social media can also fall under the scope of defamation. The Supreme Court of Turkey accepts that the crime is committed even when defamation is committed online.
Elements of the Crime of Defamation on the Internet
For the crime of defamation to occur, three essential elements must be present:
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Offensive Statement Directed at the Victim: The insult must be of a nature that damages the victim's honor and dignity.
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Intent of the Offender: The crime of insult can only be committed intentionally; the offender must act with the purpose of insulting.
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Publicity: The penalty is more severe if the insult is made in a way that others can see or hear it. Posts on social media are generally considered public.
In particular, offensive statements made in comments on Facebook, Twitter (X), Instagram, YouTube, forum posts and WhatsApp groups can lead to the fulfillment of the element of publicity.
Characteristics of the Crime of Insult on Social Media
Because social media reaches a wide audience, public disclosure is easily fulfilled. According to Article 125/4 of the Turkish Penal Code, if defamation is committed publicly, the penalty is increased by one-sixth. For example, a prison sentence ranging from 3 months to 2 years is applied at a higher rate when the defamation is committed publicly via social media.
According to Supreme Court rulings, public posts on social media are definitively considered public, while whether posts made only to a limited group of friends constitute publicity is assessed based on the specifics of the case.
Punishment for the Crime of Insult
According to Article 125 of the Turkish Penal Code, the punishment for the crime of insult is:
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The penalty is imprisonment for 3 months to 2 years or a fine.
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If the crime is committed against a public official in the performance of their duties, the penalty is imprisonment for 1 to 2 years
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The penalty is increased if it is done publicly on social media.
Furthermore, the victim's complaint is essential in prosecuting the crime of defamation. The complaint period is 6 months from the date the defamation is learned. If the victim does not file a complaint with the Public Prosecutor's Office within this period, no investigation can be opened.
The Balance Between Defamation and Freedom of Expression on the Internet
In evaluating the crime of defamation on social media, the balance between freedom of expression and the protection of personal rights is crucial. Criticismshould not be confused with defamation. Criticism, even if harsh, is a legally protected form of freedom of expression. However, derogatory remarks targeting personal rights are considered defamation.
The 18th Criminal Chamber of the Supreme Court of Appeals , in one of its decisions, ruled that harsh criticisms directed at a politician do not exceed the limits of insult, but that demeaning expressions constitute insult. Therefore, the context, purpose, and words used in each post are carefully evaluated.
Gathering Evidence on Social Media
When defamation is committed online, the most important step is gathering evidence. It is recommended to take screenshots of social media posts and, if possible, have them notarized . Additionally, the Information and Communication Technologies Authority (BTK) and the social media platforms themselves. This evidence plays a critical role in the investigation and prosecution phases.
Supreme Court Decisions and Social Media Insults
The Supreme Court ruled on defamation made via social media:
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The element of publicity is definitely met if the content is made public
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Even in closed groups, statements that can be seen by third parties may be considered insulting.
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that images such as emojis, cartoons, and photomontages can also be considered insulting.
For example, in the decision numbered 2020/3145 E., 2021/4798 K. of the 4th Criminal Chamber of the Supreme Court of Appeals, it was stated that derogatory comments made on social media constitute the crime of insult and should be punished.
Moral Damages in Defamation Cases
The victim of defamation can not only file a criminal case but also a claim for moral damages . According to Article 58 of the Turkish Code of Obligations, in cases where personal rights have been violated, the victim can claim compensation for the moral damage suffered. Claims for moral damages in defamation cases involving social media are usually heard together with the criminal proceedings or in a separate civil case.
Ways to Protect Yourself Against the Crime of Insult
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When offensive comments are seen on social media posts, a screenshot should be taken and documented through a notary public .
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complaint must be filed with the Public Prosecutor's Office, and the complaint letter and evidence must be submitted.
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If necessary, access restriction and content removal can be made to the Magistrates' Court.
Through these methods, it is possible to remedy the grievance in both criminal and legal terms.
Conclusion and Evaluation
While the internet and social media facilitate self-expression, irresponsible use of language can lead to the crime of defamation. Under Article 125 of the Turkish Penal Code, defamation committed via social media is subject to serious penalties and, due to its public nature, results in increased penalties.
Whether an insult remains within the boundaries of criticism is meticulously assessed by judicial authorities based on the circumstances of the case. While the anonymity of social media makes it difficult to identify the perpetrator, it is possible to determine their identity through information technology and BTK (Information and Communication Technologies Authority) records.
In conclusion, social media users must strike a delicate balance between freedom of expression and the obligation to respect the honor and dignity of others. Offensive posts have serious consequences, not only legally, but also socially and ethically.
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