Sosyal Medya Aracılığıyla İşlenen Hakaret Suçu

As much of human activity has moved into the virtual world, a number of offences have shifted to that environment as well. Especially since the advent of social media, with its instantaneous mutual communication, personality rights have become far easier to violate. Because the offence most frequently encountered on social media is defamation, a specific assessment was thought necessary, and the forms in which defamation is committed through social media were chosen as the subject of the study.

Although the Turkish Criminal Code contains no concept of "social media", it does cover defamation by message; the article's assessments are therefore made in the context of the general offence of defamation, under the classical headings of offence analysis.

The first paragraph of Article 125 of the Code, which regulates defamation in general, sets out the elements of the basic form of the offence and the penalty, together with the conditions of defamation in the victim's absence (in absentia). The second paragraph provides that the first paragraph applies equally where the offence is committed by an audio, written or visual message. Paragraphs 3 and 4 regulate the aggravated forms, and paragraph 5 the offence committed against public officials working as a board. Viewed in this framework, every form of the offence of defamation can be perpetrated through social media, and it is clear that the offender must be punished in such cases; the article accordingly examines all of these possibilities. Alongside court decisions and theoretical views, the study also offers personal assessments. For instance, the joint use of both "onur" (honour) and "şeref" (dignity/reputation) in the statutory text is criticised: in the Turkish Language Institution dictionary each term is defined by reference to the other as a synonym, making the duplication redundant.

The offence in Article 125 may be characterised as the general offence of defamation. The provision criminalises an attack on a person, in a manner capable of offending honour, dignity and esteem, by:

• imputing a concrete act or fact;
• casting an aspersion;
• insult (invective).

Defamation also appears, however, in the Military Criminal Code and in various other articles of the Criminal Code. These acts — termed special defamation offences — can likewise be committed through social media. Examples in the Criminal Code include:

• defamation of the President of the Republic (Art. 299);
• degrading the symbols of state sovereignty (Art. 300);
• degrading the Turkish Nation, the State of the Republic of Türkiye and the institutions and organs of the State (Art. 301);
• the acts regulated in Law No. 5816 on Offences Committed Against Atatürk.

As Article 125 shows, the distinction between defamation and insult adopted in the former Criminal Code has been abolished; the two offences are now regulated as alternative acts under the single heading of defamation.

One point deserves emphasis: although defamation is defined as an offence in a great many countries, it is not criminalised in the United States. Given that most social-media companies are headquartered there, the absence of criminalisation causes difficulties worldwide: when the examination of an internet service provider's central servers is needed to gather conclusive evidence, requests are refused by the US authorities on the ground that the act constitutes no offence. The article also subjects this stance of the US authorities to criticism.