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Social media is one of the most important digital spaces today where individuals express their thoughts, communicate, conduct commercial activities, and shape public opinion. Platforms such as Instagram, Facebook, X, TikTok, YouTube, Threads, Telegram, and WhatsApp, while expanding freedom of communication, have also become the channels where violations of personal rights occur most frequently. In particular, derogatory, humiliating, or abusive statements made through comments, stories, posts, tweets, live broadcasts, private messages, and group chats the crime of defamation .

Article 125 of the Turkish Penal Code is the fundamental provision regulating the crime of insult. According to this article, attacking someone by attributing a concrete act or fact that could harm their honor, reputation, and dignity, or by using abusive language, results in criminal liability. The basic form of the crime of insult carries a penalty of imprisonment from three months to two years or a judicial fine. Furthermore, the penalty is increased if the insult is committed publicly. One of the most debated issues in social media posts is precisely this element of "publicity.".

Not every rude remark, harsh criticism, or offensive statement made on social media automatically constitutes a crime of defamation. According to the established approach of the Supreme Court, for a statement to be considered defamatory, it must clearly involve a concrete act or fact that offends the honor, reputation, and dignity of the individual, or it must be of a vulgar nature. Therefore, the line between freedom of expression and the protection of personal rights in social media posts must be carefully defined.

What is the crime of defamation on social media?

The crime of defamation via social media involves sharing words, writings, images, videos, comments, or messages on digital platforms that constitute an attack on a person's honor, reputation, and dignity. This crime can be committed through a public post or a private message. The important thing is that the expression used targets the personal values ​​of the target.

For example, writing a comment containing offensive language under someone's Instagram post, sharing derogatory statements targeting that person via X, writing demeaning remarks mentioning someone's name on Facebook, making abusive comments under a TikTok video, or sending directly insulting messages via WhatsApp can all be considered crimes of defamation.

The crime of insult can be committed in two main ways. Firstly, by attributing a concrete act or fact to the person. For example, making specific accusations such as calling someone a thief, swindler, immoral person, or fraudster falls within this scope. Secondly, insult through verbal abuse. Even without specifically attributing an act, rude and humiliating expressions that degrade the victim's character are used.

However, the distinction here is important. Expressions such as "he acted wrongly," "he failed," "he's not doing his job well," "I criticize him," or "I disagree with this statement" directed at a person may, depending on the context, constitute harsh criticism. In the practice of the Supreme Court, not every harsh criticism or offensive remark is considered defamation; whether the words are clearly insulting is assessed according to the specific circumstances of the case.

Elements of the Crime of Insult under Article 125 of the Turkish Penal Code

For the crime of defamation to occur, there must first be a specific or identifiable victim. Even if the victim's name is not explicitly written in the social media post, the crime can be committed if it is clear from the language used who is being targeted. For example, if the person's identity can be determined through their photograph, username, profession, workplace, family connections, or the context of the event, the victim can be considered identifiable.

The second element is whether the words used are of a nature that offends honor, dignity, and reputation. Everyday discussions on social media, political criticisms, business comments, or consumer complaints may sometimes contain harsh language. However, from a criminal law perspective, what matters is whether the expression goes beyond criticism and aims to humiliate, degrade, or discredit the person in front of the public.

The third element is intent. The crime of insult is a crime that can only be committed intentionally. The perpetrator must act knowingly and willingly, understanding that the words used constitute an attack on the personal values ​​of the target. Issues such as humor, quotation, reporting, criticism, right of reply, reaction to a wrongful act, or the integrity of the discussion are evaluated separately in the specific case.

The fourth element is that the act must be directed at the victim. General, abstract, vague, and ambiguous statements on social media do not always constitute defamation. For example, general criticisms directed at a large group of people do not produce the same legal consequences as derogatory statements directly targeting a specific individual.

The Element of Publicity on Social Media

One of the most important aspects of debate in social media defamation cases of publicity . According to Article 125/4 of the Turkish Penal Code, if the defamation is committed publicly, the penalty is increased by one-sixth. However, not every social media post is automatically considered public. Factors such as who can see the post, whether the account is public or has limited access, whether the message was sent privately or publicly, and the number and nature of group members are all important considerations.

The Supreme Court has emphasized in numerous rulings that, in order to apply the principle of increased publicity to Facebook posts, it must be investigated whether the post has the potential to be seen by everyone. For example, the 18th Criminal Chamber of the Supreme Court found it unlawful to apply Article 125/4 of the Turkish Penal Code to a defendant's Facebook post without first clarifying and discussing whether the post was publicly visible.

Similarly, the 4th Criminal Chamber of the Supreme Court of Appeals considered the imposition of an increased sentence in a case of defamation via Facebook message as grounds for reversal, arguing that the issue of publicity should not be automatically accepted without discussing whether the post was visible to everyone. This approach demonstrates that publicity should not be automatically accepted in social media cases.

In contrast, in publicly accessible posts like those on X/Twitter, the element of publicity can be considered present if the post can be seen by an indefinite number of people. In a decision by the 4th Criminal Chamber of the Supreme Court of Appeals, the failure to apply Article 125/4 of the Turkish Penal Code, despite the defendant's act of insult being publicly committed on the social media site Twitter, was considered a reason for reversal.

The Crime of Insult via Private Message

Social media defamation offenses don't have to be committed only through publicly shared content. Defamatory messages sent via Instagram DM, Facebook Messenger, WhatsApp, Telegram, email, or similar private communication methods can also constitute a crime under Article 125 of the Turkish Penal Code. However, the aggravating circumstance of publicity generally doesn't apply to private messages, as the message is sent only to the intended recipient or a limited number of people.

The crucial point here is that the message must be directed at the victim. Article 125/2 of the Turkish Penal Code stipulates that the crime is committed even if the insult is delivered through an audio, written, or visual message addressed to the victim. Therefore, insulting content sent via private social media messages, WhatsApp messages, SMS, or email can also result in criminal liability.

However, for private messages to be used as evidence, they must have been obtained legally. It is generally permissible for the victim to present messages sent to them as evidence. Conversely, gathering evidence by illegally accessing someone else's account, cracking passwords, or secretly obtaining communications from a third party's phone may raise concerns about the legality of the evidence.

Defamation in Absentia and Social Media Groups

Insult can be committed in the presence of the victim, through direct communication, or in the victim's absence. According to Article 125/1 of the Turkish Penal Code, for an insult committed in the victim's absence to be punishable, the act must be committed in the presence of at least three people. This element is particularly important in the context of social media groups, WhatsApp groups, Telegram channels, or closed forums.

For example, if insulting remarks are made about a victim in a WhatsApp group while the victim is not present, it is assessed whether at least three people in the group had the opportunity to see the statement. However, the nature of the group conversation, the number of participants, who saw the message, and whether the victim was in the group are important factors in the specific case.

Defamation in absentia and public defamation are different things. Defamation in absentia requires interaction with at least three people, while public defamation requires that an indefinite number of people see, hear, or perceive the statement. Therefore, while the condition of interaction with three people might be met in a closed WhatsApp group, the element of public defamation may not always be present.

Which statements are considered insulting, and which are considered criticism?

In cases of defamation on social media, the most sensitive issue is the boundary between freedom of expression and defamation. In a democratic society, the right to criticize should be interpreted broadly. Politicians, public officials, well-known figures, businesses, and individuals making statements on matters of public interest may have to tolerate harsher criticism. However, the right to criticize does not grant the right to insult, discredit, or target the personal values ​​of another individual through concrete accusations.

The criterion frequently emphasized in Supreme Court rulings is this: Not every rude, impolite, or offensive expression constitutes the crime of insult. The words must clearly and demonstrably offend honor, dignity, and reputation. In some of its decisions, the 4th Criminal Chamber of the Supreme Court has overturned convictions, stating that rude and impolite expressions do not constitute the legal elements of the crime of insult.

Therefore, when evaluating a social media post, the entire statement, the context of the post, the previous dispute between the parties, the victim's position, the societal meaning of the words used, the purpose of the post, and its impact should all be considered together. Analyzing a single word out of context can lead to erroneous conclusions.

Insulting a Public Official on Social Media

The offense of insult constitutes an aggravated offense if it is committed against a public official due to their duties. Under Article 125/3-a of the Turkish Penal Code, the minimum sentence for insulting a public official due to their duties cannot be less than one year. The crucial point here is that the insult was committed because of the public official's duties.

For example, insulting a municipal official on social media because of their actions, writing derogatory remarks about a teacher because of their job, or insulting a police officer because of their duties could be considered within this scope. However, if the discussion concerns the public official's private life and is unrelated to their duties, whether the aggravated circumstance should be applied should be examined separately.

In cases of insulting a public official in the performance of their duties, investigation and prosecution are not dependent on a complaint. In contrast, insults directed at individuals who are not public officials are, as a rule, subject to a complaint. This distinction is important in terms of complaint periods and mediation in social media insult cases.

Complaint Period and Mediation

The crime of defamation is subject to complaint, except in cases where it is committed against a public official in the performance of their duties. In crimes subject to complaint, the victim must exercise their right to complain within six months from the date they learned of the act and the perpetrator. In cases of defamation on social media, when the victim saw the post, when they learned of the perpetrator's identity, and whether the complaint was filed within the prescribed time limit are all important factors.

The crime of defamation is, as a rule, among the crimes considered within the scope of mediation. According to Article 253 of the Code of Criminal Procedure, mediation attempts are made in crimes whose investigation and prosecution depend on a complaint. Therefore, in defamation cases conducted via social media, the file may be sent to the mediation office at the prosecution stage. If mediation is reached, a public prosecution may not be initiated, or the case may be dismissed at the prosecution stage.

However, the mediation strategy is not the same in every case. From the victim's perspective, an apology, removal of the content, compensation, a correction post on social media, or a specific action may be requested. From the suspect's perspective, accepting mediation may be considered in terms of avoiding future criminal record and conviction risks. However, the language used and the statements of acceptance made during mediation negotiations must be carefully managed.

Gathering Evidence in Social Media Defamation Cases

Accurate collection of evidence is crucial for a successful legal process in cases of defamation committed via social media. This is because the perpetrator may delete the post, change their username, close their account, or hide the content. Therefore, the victim must gather evidence without delay.

When gathering evidence, simply taking screenshots is not always sufficient. The URL link of the post, date and time information, username, profile link, whether the post was public, comments, likes, tagged individuals, and any screenshots of the post should be saved. Especially if there is an allegation of publicity, records showing that the account was public should also be included in the file.

Usernames can be changed on platforms like Instagram, X, Facebook, or TikTok. Therefore, screenshots should show the profile page, username, profile picture, bio, and sharing link all together. In WhatsApp or Telegram conversations, the phone number, group name, number of participants, message date, and context of the message should be preserved.

If necessary, notarized verification, expert reports, forensic IT reports, or requesting platform records through the court/prosecutor's office may be considered. Requesting IP and log records from the prosecutor's office is particularly important if fake accounts are being used. However, the fact that some platforms are based abroad, the perpetrator may use a VPN, or the account may be opened with fake information can make identifying the perpetrator more difficult.

Insult via a Fake Account

One common problem with social media defamation is the use of fake accounts. The perpetrator may create an anonymous account to conceal their identity, use someone else's photo, or post defamatory content from a compromised account. In such cases, it may not always be possible for the victim to know the perpetrator's identity directly.

In criminal complaints regarding defamation cases involving fake accounts, the username, URL link, shared content, messages, profile information, and any connection between the account and the victim should be detailed. The prosecutor's office may send a request to the relevant platform to investigate the account's creation details, IP addresses, login dates, associated email or phone information, and user activity.

However, simply stating that "the insults were made from a fake account" is not enough. It must be explained how the account targeted the victim, the date the statements were made, who saw the posts, and any evidence linking the account to the perpetrator.

Do retweets, quotes, shares, and likes constitute defamation?

On social media, not only the person who first posts an offensive statement but also those who knowingly disseminate, quote, or share such content on their own account may face liability, depending on the specific circumstances. Actions such as retweeting, quoting, sharing in a story, or recirculating offensive posts are particularly subject to careful scrutiny.

However, it is not accurate to speak of automatic liability here. The intention of the person sharing the content, whether they endorse the content, whether they shared it to criticize or to spread it, the context of the sharing, and whether it constitutes targeting should be examined. For example, a person who quotes an insulting post with the intention of condemning it cannot be judged the same way as a person who spreads the same content with the intention of targeting the victim.

Regarding likes, whether a mere liking constitutes the crime of defamation must be evaluated on a case-by-case basis. A liking does not always imply complicity in the act of defamation; however, it can carry evidentiary value in cases such as systematic targeting, organized attacks, or participation in a defamation campaign.

Can a claim for moral damages be filed?

Individuals who are insulted on social media are not limited to initiating a criminal investigation. They can also file a lawsuit for moral damages due to the violation of their personal rights. The extent to which the insulting post was disseminated, the severity of the language used, the victim's social standing, the duration of the post, the perpetrator's intent, the impact of the post, and the resulting emotional distress can all influence the amount of compensation.

Civil lawsuits differ from criminal lawsuits. While criminal lawsuits aim to punish the perpetrator, civil lawsuits aim to compensate the victim for the moral damages suffered due to the violation of their personal rights. A conviction in a criminal court can be considered significant evidence in favor of the victim in a civil lawsuit; however, in every case, the civil court will separately assess the amount of moral damages and compensation.

In addition, the victim can also consider requests for the removal of the unlawful content, the cessation of the attack, the identification of the attack, and, if necessary, legal protection in the form of correction/response.

Content Removal and Access Blocking

In cases of social media defamation, one of the most urgent needs for the victim is the removal of the defamatory post. Because as long as the content remains online, the victim's reputation can be further damaged. Posts from accounts with large followings, viral content, news pages, or organized smear campaigns can cause significant reputational damage.

In this case, the platform's own complaint mechanism can be used. However, evidence must be recorded before submitting a platform application, as proving the content after it has been removed can become difficult. Furthermore, if the legal conditions are met, the protection of personal rights, cessation of the attack, compensation for moral damages, and content removal/access blocking under relevant legislation can be considered.

Law No. 5651 is one of the fundamental pieces of legislation regarding online publications and access blocking processes. However, due to Constitutional Court decisions and legislative changes, the current situation regarding the content removal regime based on personal rights must be checked separately in each specific case. Therefore, in cases of defamatory social media posts, not only criminal complaints but also swift legal steps to have the content removed should be planned.

Social Media Insult in Supreme Court Case Law

The Supreme Court's ruling on social media defamation offenses is shaped around a few main criteria. Firstly, whether the words used constitute defamation or harsh criticism. The Supreme Court emphasizes that rude and offensive expressions do not always constitute defamation; for the crime to occur, the words must clearly and severely offend honor, dignity, and reputation.

Secondly, there is the element of publicity. The Supreme Court acknowledges that it is necessary to investigate whether a post on a social media platform is publicly accessible. Increasing the element of publicity without specifying whether a post or message on a Facebook account is publicly visible has been deemed grounds for reversal.

Thirdly, an increase in the penalty should be applied to publicly accessible social media posts. Especially in public posts like Twitter/X, if there is a possibility that offensive statements can be seen by an indefinite number of people, an increase in the penalty under Article 125/4 of the Turkish Penal Code may be considered.

Fourthly, there is the evaluation of the provisions regarding serial offenses or offenses against multiple victims in a single act, in cases of insults directed at multiple individuals. In Supreme Court decisions, the application of Article 43 of the Turkish Penal Code is also debated when a social media post targets multiple individuals.

These decisions demonstrate that in social media defamation cases, not only the content of the post is important, but also the platform on which it was posted, its privacy settings, the number of victims, the context of the statements, and the reach of the post.

What should someone do if they are insulted on social media?

If someone is insulted on social media, they should first document the post before it is deleted. A screenshot should be taken, the URL link saved, the date and time recorded, whether the account was public or not indicated, and if possible, a screen recording should be made. The profile information of the account that made the post should also be recorded.

A criminal complaint can then be filed with the Public Prosecutor's Office. The complaint should clearly state the chronology of the event, the content of the post, the perpetrator's identity information if known, the username and account link if unknown, the damage suffered by the victim, and the evidence requested to be collected.

If a fake account exists, a request should be made to the prosecutor's office for platform records, IP and log information, and associated phone/email information. If the insult was sent via private message, screenshots of the message, the entire conversation, the sender's account or phone number, and the date should be provided.

If the content is still online, a request to remove the content, a complaint to the platform, and legal avenues for protecting personal rights should be considered together. In cases of serious violations, it is also possible to file a lawsuit for moral damages.

Conclusion

The crime of defamation via social media is one of the most frequently encountered criminal law problems of the digital age. Posts, comments, private messages, or group discussions on platforms such as Instagram, X, Facebook, TikTok, WhatsApp, and similar platforms may result in criminal liability under Article 125 of the Turkish Penal Code if they are of a nature that offends a person's honor, reputation, and dignity.

However, not every harsh criticism, every rude remark, or every offensive expression constitutes defamation. The Supreme Court's practice also strikes a balance between freedom of expression and personal rights; for words to be considered defamatory, they must be clearly insulting. Conversely, expressions involving profanity, specific accusations, humiliation, and attacks on personal values, when committed via social media, can have criminal and legal consequences.

The element of publicity is also important in social media defamation cases. While publicly accessible posts may result in increased penalties, whether publicity exists in private messages or closed groups is assessed according to the specific circumstances of the case. The Supreme Court explicitly emphasizes that before applying an increased penalty based on publicity, it must be investigated whether the post could be seen by everyone.

In conclusion, individuals who have been insulted on social media should act promptly, saving screenshots along with the URL, date, time, username, and profile link, filing a complaint within the prescribed time limit, and considering options such as content removal and compensation for emotional distress if necessary. For the suspect or defendant, it is crucial to carefully examine whether the words constitute insult or criticism, whether the element of publicity exists, who owns the account, whether the evidence was obtained legally, and the perpetrator's intent.

Therefore, social media defamation crimes should not be viewed as simple internet arguments; they must be professionally evaluated considering criminal law, cyber law, personal rights, and digital evidence aspects.