What is the Crime of Insult, What are the Conditions and Punishment?

The Crime of Insult, its Conditions and Punishment: Legal Framework, Supreme Court Decisions and Current Application Issues

The crime of insult is one of the most fundamental provisions of criminal law aimed at protecting an individual's honor, reputation, and dignity . With the widespread use of social media and digital platforms, the crime of insult has become one of the most common types of crimes, both in face-to-face interactions and online. In the Turkish Penal Code (TCK) , the crime of insult is regulated in articles 125-131, and any words, writings, signs, or actions that violate the victim's moral values ​​are considered within this scope.

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1. Definition of the Crime of Insult (Turkish Penal Code Article 125)

According to Article 125 of the Turkish Penal Code:
“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 insulting them, shall be punished with imprisonment from 3 months to 2 years or a judicial fine.”

The crime of defamation has two basic elements:

1. Attributing a concrete act or fact: Accusing someone of a false and defamatory action.

2. Swearing: Using abusive, derogatory, or insulting language that damages a person's dignity.

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2. Elements of the Crime of Insult

2.1. Perpetrator and Victim

The crime of insult can be committed by anyone. The victim is the natural person whose honor has been violated. Insulting legal entities is not possible; however, the crime occurs if the managers of a legal entity are insulted.

2.2. Movement and Declaration

• Insult can be committed verbally, in writing, or visually.

• This includes insults made through social media posts, messaging applications, or email.

2.3. The Condition of the Victim Being Offended

The words or actions used must be considered socially offensive. Simple criticisms, harsh comments, or humorous expressions do not constitute defamation.

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3. Aggravated Forms of the Crime of Insult

According to Article 125/3 of the Turkish Penal Code;

• Insulting a public official in the performance of their duties: The penalty cannot be less than one year.

• Insulting religious values: The penalty will be increased.

• Public insult: If the crime is committed in a public setting (e.g., social media), the penalty is increased by 1/6.

• Insulting someone in their absence: This is considered an insult if it is done in the presence of more than three people.

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4. Exceptions to the Crime of Insult

In some cases, statements that appear to be insulting do not constitute a crime:

• The Right to Criticism: A person's publicly known actions can be criticized in a harsh but non-offensive manner.

• Legal Justifications: Situations such as the consent of the person concerned or the exercise of the right to self-defense can eliminate the crime of defamation.

• Public Interest: If journalistic activities involve accurate information and serve the public interest, defamation may not occur.

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5. Punishment for the Crime of Insult

• Simple insult: Imprisonment from 3 months to 2 years or a fine.

• Public insult: The penalty is increased by 1/6.

• Insulting a public official: The penalty cannot be less than one year.

• Mutual insult (Turkish Penal Code Article 129): If one of the parties responds to the insult, the penalty may be reduced or no penalty may be applied.

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6. Defamation in Light of Supreme Court Decisions

The 18th Criminal Chamber of the Court of Cassation, Case No. 2019/3282, Decision No. 2020/1547, stated:
“The defendant’s abusive post on social media targeting the victim’s honor constitutes the crime of insult. The penalty has been increased because the act was committed in a public setting.”

The Supreme Court Criminal General Assembly, Case No. 2018/1134, Decision No. 2019/632, stated:
“Simple criticism or rude language does not constitute the elements of the crime of insult. It should be evaluated within the scope of freedom of expression.”

The 4th Criminal Chamber of the Supreme Court of Appeals, Case No. 2020/3271, Decision No. 2021/944, stated:
"It is sufficient that the words targeting the victim's honor and dignity are considered a grave insult by society."

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7. ECHR Case Law

The European Court of Human Rights views the crime of defamation as a balancing factor between Article 10 (freedom of expression) and the protection of private life (Article 8) of the ECHR

• Lingens v. Austria (1986): Criticisms that serve the public interest should be considered within the scope of freedom of expression, even if they exceed the limits of defamation.

• Eon v. France (2013): Harsh criticism of public officials is acceptable within the scope of freedom of expression in a democratic society.

• Dink v. Turkey (2010): It was emphasized that the boundaries of freedom of expression in journalistic activity should be kept broad.

According to the ECHR, while freedom of expression is a fundamental element of a democratic society, defamatory and insulting statements may fall outside the scope of this freedom.

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8. Problems Encountered in Defamation Crimes Today

8.1. Social Media Insults

Comments posted on platforms like Twitter, Instagram, and Facebook often spread rapidly and cause significant emotional distress to the victim.

8.2. Distinction Between Freedom of Expression and Defamation

Judicial decisions can vary regarding whether criticism constitutes defamation. The boundaries are broader when it comes to criticism directed at public figures.

8.3. Collection of Digital Evidence

Taking screenshots of offensive messages, tracing IP addresses, and obtaining information from social media companies sometimes poses problems in practice.

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9. Complaint and Reconciliation in Defamation Cases

Offenses of defamation are subject to complaint . The victim must exercise their right to complain within 6 months of learning of the act . Offenses of defamation are subject to reconciliation ; if the parties reach an agreement, the case is dismissed.

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10. Suggestions for Preventing the Crime of Insult

1. Digital awareness should be increased, and social media users should be informed.

2. The line between freedom of expression and defamationshould be clarified in light of the jurisprudence of the Supreme Court of Turkey and the European Court of Human Rights.

3. Reconciliation processes should be conducted effectively to achieve amicable solutions between the parties.

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

• The Supreme Court distinguishes between insult and criticism based on the specific circumstances of the case.

• The ECHR recognizes broad freedom of expression but also emphasizes the need to protect personal rights. Both courts consider the protection of an individual's dignity and honor in a democratic society as a fundamental principle
  

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12. Conclusion

The crime of defamation is delicately balanced with freedom of expression, while simultaneously protecting the honor and dignity of individuals. The communication possibilities brought about by the digital age have broadened the scope of this crime and necessitated new interpretations by the courts.
Article 125 of the Turkish Penal Codewas enacted to protect both the personal rights of the victim and the democratic social order. The increasing number of defamation crimes committed via social media today once again highlights the importance of both legal regulations and individual awareness.

Gozdenur Turna