WHAT IS THE CRIME OF VIOLATING THE PRIVACY OF COMMUNICATION?

The crime of violating the confidentiality of communication in Article 132 . In legal terms, this crime punishes acts that unlawfully destroy the confidentiality of communications between individuals (letters, telephone calls, emails, messaging, etc.), including listening to, reading, recording, or disclosing such communications.

The fundamental legal value protected by this crime is the right to privacy and freedom and confidentiality of communication, which are guaranteed by the Constitution .

1. Material Elements and Methods of Commission of the Crime

According to the law, the crime of violating the confidentiality of communication can be committed through various alternative actions:

• Interception or Recording of Confidential Communications (Turkish Penal Code Article 132/1): The unlawful listening to or recording of private conversations between individuals using a device.

• Disclosure or Dissemination of Communication Content (Turkish Penal Code Article 132/2): The unlawful giving, disclosing, or disseminating of communication content between individuals to other persons.

• Opening of Letters or Documents (Turkish Penal Code Article 132/3): The unlawful opening or reading by unauthorized persons of letters, telegrams, or other sealed envelopes/communication contents exchanged between individuals via post or electronic means.

2. Basic Form of the Crime and Punishment

• Basic Penalty: for violating the confidentiality of communication generally from 1 to 3 years of imprisonment or a fine, . (Penalties may be increased in cases of unlawful disclosure or dissemination of the content.)

• Investigation and Prosecution: The investigation and prosecution of the basic form of this crime are subject to complaint. However, certain aggravated forms of the crime (for example, commission through the press or publications, or abuse of authority by a public official) may be prosecuted ex officio.

The Crime of Violating Communication Between Individuals Committed by Recording the Content of Communications

The crime of violating communication between individuals is considered aggravated if it is committed by recording the content. In this case, the penalty is increased by one fold.

Under this aggravated circumstance, anyone who records data containing the sharing of feelings and thoughts between two or more people is punished. The crime does not occur if the parties consent to the recording of the communication content.

For example, installing spyware on someone's phone to record a phone call, using a listening device to record a conversation between two people, or taking a screenshot of a WhatsApp conversation are all punishable under this aggravated offense.

In a Supreme Court ruling, it was determined that a person who installed spyware on their spouse's phone to record their conversations committed the crime of recording and processing private communications.(Supreme Court 12th Criminal Chamber, Case No. 2020/974, Decision No. 2021/3641)

The crime was committed by a public official through the abuse of authority granted by their position

The second aggravated form of the crime of violating the confidentiality of communication is when the crime is committed by a public official and through the abuse of authority granted by that public office. In this case, the penalty is increased by half.

For example, if a police officer listens to, records, or discloses a conversation between (A) and (B) using the necessary equipment provided by the police station without a prosecutor's order, this constitutes an aggravated offense.

Committing a crime by taking advantage of the opportunities provided by a particular profession or art

The last aggravating circumstance of the crime of violating the confidentiality of communication is when the crime is committed by taking advantage of the opportunities provided by a particular profession or trade. If this aggravating circumstance occurs, the sentence imposed on the offender is increased by half.

An example of this qualified status is when a building caretaker, acting as a doorman, reads the mail delivered on behalf of the residents.

Statute of Limitations for the Crime of Violating the Confidentiality of Communication

The statute of limitations for prosecution regarding the crime of violating the confidentiality of communications is 8 years from the date the crime was committed; the statute of limitations for punishment is 10 years  from the date the conviction becomes final

If the statute of limitations for a crime expires, no further action can be taken regarding the relevant offense; if it has already been taken, it will be dismissed. Similarly, after the statute of limitations for a criminal offense has expired, the execution of the sentence imposed on the defendant cannot be demanded.

Supreme Court Decisions

1. Court of Cassation, 12th Criminal Chamber — Case No: 2022/4210, Decision No: 2023/2150

• Case Summary: The defendant secretly accessed the WhatsApp message history from their spouse's mobile phone during their divorce proceedings or dispute, transferred these messages to their own phone, saved them, and stored them for the purpose of presenting as evidence in court.

• Supreme Court Assessment: The Supreme Court emphasized that the unauthorized recording and acquisition of private communication content between individuals constitutes a violation of the confidentiality of communication under Article 132/1 of the Turkish Penal Code. Although the aim is to present evidence in a legal process, the court stated that the legal elements of the crime were fulfilled due to the unlawful method of acquisition and upheld the conviction.

2. Court of Cassation, 12th Criminal Chamber — Case No: 2021/13900, Decision No: 2022/7120

• Case Summary: The defendant is accused of secretly recording telephone conversations or chats belonging to others in a social setting or workplace without their consent or knowledge, and then playing these recordings to third parties.

• Supreme Court Review: The Supreme Court has stated that the act of secretly listening to and recording private conversations between individuals constitutes a crime of violating the confidentiality of communication. It upheld the local court's ruling, stating that even if one is a party to the conversation, secretly recording and disclosing the contents without consent will result in criminal liability.

3. Court of Cassation, 12th Criminal Chamber — Case No: 2023/2100, Decision No: 2023/6400

• Case Summary: A public prosecution was initiated against the defendant for violating the confidentiality of communications. During the trial, the victim withdrew their complaint and requested that the case be dismissed. The court, taking this withdrawal into consideration, issued a dismissal order.

• Supreme Court Assessment: The Supreme Court reminded that the investigation and prosecution of the basic form of the crime of violating the confidentiality of communication, regulated in Article 132 of the Turkish Penal Code, is dependent on a complaint. It upheld the decision, stating that if the victim withdraws their complaint within the legal time limit, the decision to dismiss the case pursuant to Article 223/8 of the Code of Criminal Procedure is lawful.

Crime of Violating the Confidentiality of Communication: Evaluation and Conclusion

The crime of violating the confidentiality of communication is one of the fundamental types of crimes that protects the constitutionally guaranteed rights of individuals to privacy and freedom of communication , and defends the security and confidentiality of communication between individuals. This provision, regulated in Article 132 of the Turkish Penal Code, criminalizes the unlawful listening to, recording, reading, or disclosure of any non-public communication content such as letters, telephone calls, text messages, and emails.

The key issues highlighted in practice and in the jurisprudence of the Supreme Court can be summarized under the following headings:

• Confidentiality and Unauthorized Recording: Secretly recording or disclosing to third parties the content of communications between individuals, even by one of the parties, is sufficient for the crime to be constituted. The Supreme Court rulings clearly emphasize that unlawful recording and seizure operations carried out for the purpose of obtaining evidence, especially in judicial proceedings, do not negate the material elements of the crime.

• Optional Actions and Diversity: The fact that the crime can be committed through different optional actions such as opening letters, listening to/recording conversations, or disseminating content, brings all digital and physical communication tools under the umbrella of legal protection.

• Complaint Regime and Exceptions: Prosecution of the basic form of the crime is dependent on a complaint; this gives the victim the opportunity to direct the process, and withdrawal of the complaint within the legal time limits results in the dismissal of the case. However, the investigation regime may differ in cases of aggravated forms of the crime or when committed through the press/media.

• Protection of Communication Privacy: As underlined in judicial decisions, the confidentiality of communication between individuals is an indispensable part of a democratic society and individual freedoms. Effectively combating this crime is vital for establishing freedom and security of communication.