Subject 09- Offenses Against Privacy and Confidentiality in the Digital Environment

tarafından | Eki 17, 2023 | Cyber Law

Subject 09- Offenses Against Privacy and Confidentiality in the Digital Environment

  • Violation of Communicational Secrecy (TCK 132)
  • Eavesdropping and Recording of Conversations Between Persons (TCK 133)
  • Violation of Privacy (TCK 134)
  • Recording of Personal Data (TCK 135)
  • Illegally Obtaining or Giving Data (TCK 136) 
  • Violation of Communicational Confidentiality

According to Article 132 of the Turkish Penal Code,

  1. Any person who violates the confidentiality of communication between people shall be sentenced to a penalty of imprisonment for a term of one to three years. If the violation of confidentiality occurs through the recording of the content of the communication, the penalty to be imposed shall be increased by onefold.  
  2.  Any person who unlawfully discloses the contents of a communication between people shall be sentenced to a penalty of imprisonment for a term of two to five years.  
  3.  Any person who unlawfully publicly discloses the content of a communication between himself and others without obtaining their consent shall be sentenced to a penalty of imprisonment for a term of one to three years.   Where such conversation is published in the press or media, the penalty to be imposed shall be the same. 

According to the justification of the article, this crime is committed by learning the content of communication between specific individuals. The manner in which communication is conducted between individuals is not important for the occurrence of the crime. This communication can be done, for example, through letters, phone calls, telegrams, or email. What is significant in terms of this offense is that the communication takes place between specific individuals. It is possible for a person who is not a party to the communication to commit this offense.

According to Article 132 of the Turkish Penal Code, there are four forms of this offense:

–Violating the privacy of communication between individuals.

–Disclosing the content of communication between individuals

–Publicly disclosing the content of communication made with oneself.

–Publishing the disclosed data through the press or media.

  •  Violating the confidentiality of communication between individuals

According to Turkish Penal Code Article 132/1;

“Any person who violates the confidentiality of communication between persons  shall be sentenced to a penalty of imprisonment of one to three years. If the violation of confidentiality occurs through the recording of the content of the communication, the penalty to be imposed shall be increased by one fold.”

According to the justification  of the article, the basic form of the offense is established by only listening to or reading the content, thus violating the confidentiality of communication. However, the qualified form of the offense is defined when this breach of confidentiality is done by recording the content of the communication, meaning the spoken or written words. For instance, when telephone conversations are recorded using a voice recording device, the offense takes on this qualified form.

  • Disclose

According to Turkish Penal Code Article 132/2;

“Any person who unlawfully discloses the contents of a communication between persons shall be sentenced to a penalty of imprisonment for a term of two to five years.”

According to the justification   of the article, the second paragraph of the article defines the unlawful disclosure of the content of communication between individuals as a distinct offense. Communication content may have been obtained in a lawful manner or as a result of the commission of the offense described in the first paragraph. The offense delineated in the second paragraph materializes through the disclosure, dissemination, or unauthorized acquisition of communication content. The paragraph text explicitly underscores the requirement that this disclosure be unlawful. Consequently, for example, the presentation of records of telephone conversations between individuals to the prosecution or in a court hearing and their open listening or reading will not give rise to the said offense. On the other hand, it will be illegal if, during the investigation, the content of conversations between people is made public, even if the conversations were legally recorded, for example, by showing them on TV or in the newspaper. Posting it on social media is also encompassed within the purview of disclosure.

  • To publicly disclose the content of communication made with oneself

According to  Turkish Penal Code Article 132/3;

“Any person who unlawfully discloses the content of a communication between himself and others without obtaining their consent shall be sentenced to a penalty of imprisonment for a term of one to three years. Where such conversation is published in the press or media, the penalty to be imposed shall be the same.” 

According to the justification of the article, in the third paragraph of the article, violating the confidentiality of communication by publicly disclosing the content of communication with oneself without the consent of the other party is defined as a separate offense. For the commission of this offense, the disclosure must be made publicly. Therefore, for instance, if a person reads a letter or email sent to them by someone else without the knowledge and consent of the sender, this offense will not be established. In contrast, if a letter is publicly read without the knowledge and consent of the sender, displayed in a place to ensure others read it, or published through social media, the press, or other media channels, the offense will be considered to have occurred.

  • Publishing the disclosed data through the  press or media

According to Turkish Penal Code Article 132/4;

“Where such conversation is published in the press or media, the penalty to be imposed shall be the same.”

Social media and internet platforms accessible to everyone are also included within the scope of the press and  broadcasted. 

Supreme Court 12th Criminal Division 2019/577 E., 2019/12248 K.

In the case where the defendant gained unauthorized access to the victim’s Facebook account and forwarded messages between the victim and others to their own email account, the defendant claimed to know the Facebook password of the victim, asserting that there was no action of password cracking. Furthermore, there was no evidence confirming the victim’s claims of a breached password.

In light of this, the court’s decision to convict the defendant for offenses related to hindrance or destruction of the system, deletion or alteration of data as per Article 244/2 and unlawfully providing or obtaining data as per Article 136/1 of the Turkish Penal Code, without considering that the defendant’s actions constituted offenses of violation of communication confidentiality as per Article 132/1 and unauthorized entry into the computer system as per Article 243/1 of the Turkish Penal Code, was flawed and required to be overturned.

Supreme Court Criminal General Assembly Case Number: 2016/487 Decision Number: 2020/353 Decision Date: 09.07.2020

The prevention of arbitrary interference by public authorities with an individual’s freedom of communication and the privacy of their communications is constitutionally guaranteed. The Constitution establishes the fundamental principles that everyone possesses the freedom of communication and that the privacy of communication is inviolable. In Article 22, titled “Freedom of Communication,” the Constitution stipulates:

“Everyone is entitled to the freedom of communication. The confidentiality of communication is essential.”

Without a judicial order issued in accordance with the procedures required by law, communication cannot be intercepted and its confidentiality cannot be violated, except for national security, public order, the prevention of crimes, the protection of public health and general morality, or the rights and freedoms of others, or with a written order from the competent authority in cases where delay would be detrimental for the aforementioned reasons. The decision of the competent authority shall be submitted to the designated judge within twenty-four hours. The judge shall announce the decision within forty-eight hours; otherwise, the decision shall be automatically nullified.

The public institutions and organizations where exceptions will be applied shall be determined by law.”

As evident, the Constitution not only safeguards the freedom of communication but also underscores the vital importance of the confidentiality of communications, regardless of their content or form. Therefore, the communicative activities of individuals, encompassing verbal, written, and visual exchanges conducted through mail, email, telephone, fax, and the internet, should be evaluated within the framework of both freedom of communication and confidentiality of communication. Any attempt to scrutinize the content of communication constitutes a severe infringement on this freedom. Nevertheless, it is essential to acknowledge that freedom of communication is subject to certain limitations. The specific criteria for such limitations are enumerated in the second paragraph of Article 22 of the Constitution. Furthermore, the third paragraph of the same article states that legal provisions will designate the public institutions and organizations where exceptions are applicable. Consequently, in cases of interference with freedom of communication, the legality and presence of justifiable circumstances must be assessed on an individual basis, taking into account the unique circumstances of each case.

  • Eavesdropping and Recording of Conversations Between Individuals

The crime of “eavesdropping on and recording conversations between individuals” is regulated in Article 133 of Turkish Penal Code. 

Article 133 – (1) Any person who interacts with the act of eavesdropping on non-public conversations between persons without the consent of any of such persons by means of a device or who records such conversations by means of an audio recording device shall be sentenced to a penalty of imprisonment for a term of two to five years.

(2) Any person who records a non-public conversation he attends by means of an audio recording device without the consent of the other speakers shall be punished by imprisonment or judicial penalty from six months to two years.

(3) Any person who unlawfully discloses data obtained through the recording of non-public conversations between persons shall be punished by imprisonment for two to five years and a judicial fine of up to four thousand days. The same punishment is imposed for the publication of such data in the press and media.

According to the justification of the article, the classification of a conversation as a non-public conversation among people present together is not dependent on the location where the conversation takes place. In this regard, a conversation between two people in a park that is only audible to other people with special effort qualifies as a non-public conversation. Similarly, a conversation taking place among a limited number of people in a house is considered a non-public conversation.

According to Turkish Penal Code (TCK) Article 133, the offense has three forms:

-Eavesdropping on non-public conversations using a device or recording with an audio recording device

–Recording non-public conversations with an audio recording device.

–Disclosing non-public conversations after recording them

  • Eavesdropping on non-public conversations using a device or recording with an audio recording device

According to Turkish Penal Code Article 133/1; 

“Any person who interacts with the act of eavesdropping on non-public conversations between persons without the consent of any of such persons by means of a device or who records such conversations by means of an audio recording device shall be sentenced to a penalty of imprisonment for a term of two to five years.”

For the commission of this offense, there must be at least 2 or more people involved under the definition of “conversation.” The perpetrator is not a party to this conversation.

According to the justification  of the article, the offense described in the first paragraph occurs when a non-public conversation is eavesdropped on with a device or recorded with an audio recording device. This offense can be committed by a person who is not a party to the non-public conversation. To constitute the offense, it is sufficient that none of the parties involved in the conversation has given their consent. Therefore, having the consent of one of the parties to the conversation will not exempt the act from being a crime.

For the occurrence of the offense of eavesdropping on and recording conversations between individuals as regulated in Article 133/1 of Law No. 5237 TCK ; (Supreme Court 12th Criminal Chamber Decision: 2012/13117 and Ruling: 2012/14791)

  • Two or more persons,
  • Act with a justifiable belief and will that others will not know and it will not go beyond a limited listening circle,
  • Without using any intermediary means, conduct a face-to-face conversation,
  • However, the non-public, verbal, and vocal expressions that can be heard with special effort,
  • By a person or persons who are not a party to the conversation,
  • Without the consent of the relevant party,
  • With a suitable device (any kind of mechanism that enhances or transmits vocal expressions, enabling them to be taken out of the audio area and directly perceivable) 
  •  recording with a device that enables acoustic playback,

The offense requires certain conditions to be met: Specific or determinable two or more persons, using suitable means (internet, telephone, radio, fax, letter, telegraph, paper, etc.) and shared information, thoughts, feelings, and attitudes through common symbols (speech, writing, signs, etc.), whether related to private life or not, being disclosed without the consent of the relevant party or parties, i.e., being spread, exposed, displayed, announced, made public, or, in summary, being made available to persons who do not have the authority to learn its content. This action is evaluated within the scope of the offense of violating the confidentiality of communication as defined in Article 132/2 of Law No. 5237 TCK . 

In cases where communication occurs between individuals without a medium in conversation, and where individuals record the words exchanged between them without the knowledge and consent of the other party through a suitable means, the act is not specifically defined as a crime under Article 133/1 of Law No. 5237 TCK ; however, under the conditions stipulated, the act constitutes the offense of violating the privacy of private life as regulated in Article 134 of Law No. 5237 TCK.

  • Recording a non-public conversation with an audio recording device

According to Turkish Penal Code Article 133/2;

“Any person who records a non-public conversation he attends by means of an audio recording device without the consent of the other speakers shall be punished by imprisonment or judicial penalty from six months to two years.”

Recording non-public conversations with an audio recording device by at least three or more individuals, who act with a legitimate belief and intention that others will not know, and that it will not go beyond a limited audience, conducted face to face without using any intermediary means but can be heard with special effort, non-public, spoken expressions of thought, by the parties to the conversation, without the consent of the relevant individuals, in a way that allows acoustic replay, are defined as a crime under Article 133/2 of the TCK.. For this crime to occur, it is necessary and sufficient that the conversation is not spoken in a way that can be easily heard and understood without any additional effort, regardless of the content of the conversation.(Supreme Court Criminal Division  12th E. 2013/26087 K. 2014/10205) 

  • Disclosing non-public conversations after recording them

According to Turkish Penal Code Article 133/3;

“Any person who unlawfully publicizes the information obtained through recording private conversations between persons shall be sentenced to imprisonment for a term of two to five years or a judicial fine up to four thousand days. Where such conversation is published in the press or media, the penalty to be imposed shall be the same. “

According to the justification of the Article, taking advantage of information that is known to have been obtained by committing the crimes defined in the first two paragraphs, or which can be accepted to have been obtained in this way, providing them to others, or securing other individuals’ access to this information, has been defined as a crime under the third paragraph of the Article. The publication of the contents of such conversations through the press and media requires more severe misdemeanors

At least three or more individuals, who act with a legitimate belief and intention that others will not know and that it will not go beyond a limited audience, conducted face-to-face without using any intermediary means but can be heard with special effort, non-public, spoken expressions of thought, by the parties to the conversation, without the consent of the relevant individuals, in a way that allows acoustic replay, are defined as a crime under Article 133/2 of the Turkish Penal Code. For this crime to occur, it is necessary and sufficient that the conversation is not spoken in a way that can be easily heard and understood without any additional effort, regardless of the content of the conversation.

For this crime to occur, the conversation should not be open, which means

  • it should not be spoken in a way that can be easily heard and understood 
  • without any additional effort by
  •  an unspecified number of people. 

The content of the conversation is not relevant to the occurrence of the crime. In other words, it doesn’t matter whether the conversation is about private matters or widely known subjects; the critical factor is how it is spoken—quietly, privately, or discreetly.

In sudden and emergent situations where a person has no means of obtaining evidence again and no possibility to appeal to the authorities, such as in cases involving crimes like sexual assault, defamation, threats, or blackmail committed against them or their family, or to prevent an unwarranted attack that would harm their honor, the act of recording conversations, communication content, audio, or video material related to private life, without the knowledge and consent of the perpetrator, is not considered unlawful. Furthermore, in such situations, it cannot be argued that the person acted unlawfully. This can be due to the fact that they are acting to prevent the possible loss of evidence that could disappear and to secure it by presenting it to the relevant authorities. (Supreme Court 12th Criminal Division E. 2013/26087 K. 2014/10205)

In a specific case, Supreme Court stated that “Considering the defendant’s undisputed claim that they served at the bank from 2003 to 2012, and from 2009 onwards as the head of the unit, that there has been a negative attitude towards the victim since the victim started working, the defendant’s intention to eliminate the victim because of being a former employee, and previous instances of verbal insults, offensive and humiliating behaviors towards the victim in the workplace, approximately one month ago, initiating an unjustified investigation against the victim, and on the day of the incident, secretly recording the insulting conversation with a cell phone because of insulting words spoken during a performance evaluation meeting, the defendant’s actions are not considered unlawful.” (Supreme Court 12th Criminal Division E. 2013/26087 K. 2014/10205) 

  • Violation of Privacy 

Article 134 of Turkish Penal Code regulates privacy.

Article 134- (1)  Any person who violates the privacy of another person’s private life shall be sentenced to a penalty of imprisonment for a term of one month to three years. Where a violation of privacy occurs as a result of recording images or sound, the penalty to be imposed shall be increased by onefold.  

 (2)  Any person who unlawfully discloses the images or sounds of another person’s private life shall be sentenced to a penalty of imprisonment for a term of two to five  years. Where the offense is committed through the press or broadcasting, the penalty shall be the same. 

There are two aspects to this offense:

–Violation of individuals’ private life 

–Disclosure of images and sounds related to private life

  • Violation of individuals’ private life privacy

According to Turkish Penal Code Article 134/1, “Any person who violates the privacy of another person’s private life shall be sentenced to a penalty of imprisonment for a term of one month to three years. Where the violation of privacy occurs as a result of recording images or sound, the penalty to be imposed shall be  increased by one fold.”

According to the justification of the article; the first paragraph of the article defines the violation of the confidentiality of private life as a crime. Thus, entering into a person’s private living space or, in any other way, detecting and recording a private life event that cannot be seen by others is punished.

Private life is not just limited to a person’s life behind closed doors, hidden from the eyes of others. It encompasses all personal life events and information that are unknown to others or should not be known to others but can be disclosed to others when desired.

Therefore, being in a public area does not imply consent to having every image or sound in that area listened to, watched, recorded, or continuously held without permission.

Even in a public area, the principle of “not drawing attention, being unrecognizable, and being unknown in the crowd” applies. Information obtained as a result of constant monitoring and surveillance for the purpose of determining a person’s activities during the day, places visited, who they interacted with, why, how, where, and when they met others, as well as activities that are beyond doubt related to their private life when they enter their private living space, falls within the scope of private life. However, events and information that do not involve continuity and do not fall within the private living space cannot be evaluated in this context. Therefore, when determining whether an event or information falls within the scope of private life, various criteria such as a person’s social status, profession, responsibilities, degree of recognition by the public, outward behavior, consent, and expectations, social relationships, the characteristics of the physical environment in which they are located, and the degree of intrusion should be taken into consideration. (Supreme Court 12th Criminal Division Case Number: 2015/13813 Decision Number: 2016/8242) 

  • Disclosure of images and sounds related to private life 

According to Turkish Penal Code 134/2; “ Any person who unlawfully discloses the images or sounds of another person’s private life shall be sentenced to a penalty of imprisonment for a term of two to five  years. Where the offense is committed through the press or broadcasting, the penalty shall be the same.” 

 

The term ‘disclosure’ in the context means making images and sounds public, making them accessible, or transferring them to a third party who has no right to know. 

Whether the disclosed secrets were obtained legally or illegally does not exempt them from being a crime. Consent makes the action legal; the investigation and prosecution of the offense depend on the victim’s complaint.

In the second paragraph of the article, the disclosure of images or sounds related to an individual’s private life is defined as a separate offense. These images or sounds may have been legally recorded, for example, as part of an investigation, or they may have been obtained through the commission of the crime described in the first paragraph. The offense in the second paragraph occurs with the disclosure, spreading, or making it accessible to unauthorized persons. This disclosure must be unlawful. In this regard, if records related to private life are submitted to the prosecutor’s office or the court, presented in a trial, and played, then the offense in question will not occur. Disclosure through the press and broadcasting considered a qualified element of this offense.

  • Recording of Personal Data

According to the Article 135 of Turkish Penal Code,

  1. Any person who illegally records personal data shall be sentenced to a penalty of imprisonment for a term of one to three years.
  2. Any person who illegally records personal data on another person’s political, philosophical or religious opinions, their racial origins; their illegal moral tendencies, sex lives, health or relations to trade unions shall be sentenced to a penalty of imprisonment in accordance with the above paragraph.  

According to the justification  of the article, the subject of the offense is personal data. Any kind of information related to an individual should be considered as personal data. The definition of this offense does not distinguish between recording personal data in a computer environment or on paper. For this offense to occur, personal data must be recorded unlawfully. It is clear that recording information related to a person with their consent does not constitute a crime. The recording of certain specific personal data is done as required by law in various public institutions as part of providing public services. In such cases, this offense will not be considered to have occurred.

In the second paragraph of the article, recording information about individuals’ political, philosophical, or religious beliefs, racial origins, moral inclinations, sexual lives, health conditions, or union affiliations is defined as a crime. However, the recording of information related to individuals’ moral inclinations, sexual lives, health conditions, or union affiliations may be allowed to some extent in the laws, especially in the context of combating crime and uncovering criminals. In these cases, this offense will not be considered to have occurred.

  • Illegally Obtaining or Giving Data

According to Article 136 of the TCK,

  1. Any person who illegally obtains, disseminates or gives to another person someone’s personal data shall be sentenced to a penalty of imprisonment for a term of two to four years
  2. Any person who illegally obtains, disseminates or gives to another person someone’s personal data shall be sentenced to a penalty of imprisonment for a term of two to four years
  • The Decision of the Supreme Court Regarding the Nature of Publicly Shared Photos (Supreme Court 12th Criminal Division Case Number: 2017/2960, Decision Number: 2018/1541 )

In the case in question, it is asserted that the accused, who had previously met and become friends on the internet with the complainant, shared photos from the complainant’s own Facebook account, without the complainant’s consent, using a fake Facebook account opened in the complainant’s name. It should be noted that the fact that the complainant had previously published these images on their own Facebook account, which were taken in public places while wearing everyday clothes, and that they had a personal data nature, does not alter the personal data nature of these images. Also, it was not considered whether the accused had the right to publish these images to third parties without the complainant’s consent. Hence, the decision to convict the accused for the crime of providing or acquiring data unlawfully, as per Article 136 of the Turkish Penal Code, should have been made, instead of the decision to acquit the accused made based on an error in the evaluation of evidence. Therefore, the judgment, which was rendered without proper consideration of the evidence and is in violation of the law, was unanimously annulled on 14/02/2018

The Decision of the Supreme Court on Distinction Between Private Life and Personal Data (Supreme Court 12th Criminal Division Case Number: 2018/8360, Decision Number 2019/9056 K.)

The violation of individuals’ privacy is regulated as a crime in Article 134/1 of the Turkish Penal Code, first paragraph. Private life is not confined to what a person experiences within closed doors, hidden from the eyes of others, but encompasses everything that is unknown to everyone or should remain unknown, and can be disclosed to others when necessary.

When determining whether an event or information falls within the scope of private life, criteria such as a person’s social status, profession, role, recognition by the public, outward behaviors, consent, expectations, social relationships, characteristics of the physical environment, and the degree of intrusion should be taken into consideration.

In Article 136/1 of the Turkish Penal Code, all kinds of information pertaining to a specific or identifiable individual being provided to another, disseminated, or acquired by unlawful means are defined as a crime under the title of “Illegally Obtaining or Giving Data”

The offense of disclosing or acquiring data unlawfully is based on the concept of “personal data,” which encompasses any and all information that can be attributed to a specific or identifiable individual. This information may include, but is not limited to, population data (such as Turkish identification number, name, surname, place and date of birth, mother and father’s names), criminal record, place of residence, educational status, profession, bank account details, phone number, email address, blood type, marital status, fingerprints, DNA, biological samples like hair, saliva, or nails, sexual and moral tendencies, health information, ethnic origin, political, philosophical, and religious beliefs, union affiliations, or any information that distinguishes the person from other individuals and reveals their attributes.

As emphasized in the details in the decision of the Supreme Court General Assembly dated 17.06.2014, numbered 2012/1510 main case, 2014/331, regarding the protection of personal data in Articles 135 and 136 of the Turkish Penal Code (TCK), there is no provision stating that only confidential personal data will be protected. On the contrary, the justification for Article 135 explicitly states that any kind of information related to a real person should be considered as personal data. Therefore, the actions of unlawfully providing, disseminating, or obtaining any kind of personal data fall under the scope of Article 136 of the TCK, which defines the offense of illegally obtaining or giving data.

Hence, even personal information that is widely known and easily accessible to the public is legally considered “personal data.” However, to avoid the undesirable consequences of expanding the application of the offense of illegally obtaining or giving data too broadly and making almost any action a crime, it is necessary to carefully evaluate the specifics of each case. This includes examining whether there is any legal justification that could be accepted by any branch of law or any aspect that can be taken into consideration within this scope, and determining whether the defendant acted in violation of the law and knew or could have known about it based on the characteristics of the case.

Additionally, even if there is no doubt that an image or voice related to a person’s private life is considered as “personal data,” the Act of disclosing, without consent, an image or voice related to a person’s private life, which has been electronically, digitally, or magnetically fixed to a specific location by a device with the capability of capturing or recording, is regulated within the scope of the offense of violating the privacy of private life under Article 134/2 of the Turkish Penal Code (TCK). In other words, it involves the actions of disseminating, revealing, displaying, announcing, making it public, or bringing it to the attention of the public or individuals who are not authorized to access its content. Therefore, images or voices related to a person’s private life cannot be considered as personal data within the legal framework of Article 136/1 of the TCK.

In light of these explanations and based on the case examined in the file, in which the defendant, after the termination of his friendship with the victim, created a fake Facebook account named “Sfy…” and published private photos of the victim and himself, it is alleged that he committed the offense of illegally obtaining or giving data under Article 136/1 of the TCK. 

When considering the images in the fake Facebook account as described in the indictment, where the victim focused on the device while embracing the defendant, who was lying next to her, in a naked state, and an image was captured starting from chest level,

In consideration of the existence and extent of the relationship maintained by the victim, who keeps the relationship and its dimensions concealed, the act of publishing photographs within the scope of the private life area related to the sexual and physical privacy of the victim, contrary to their consent, constitutes the crime of violation of the privacy of private life by disclosing images or sounds in accordance with Article 134/2 of the Turkish Penal Code (TCK). Pursuant to the provisions of Article 139/1 of the same Law, the crime of violation of the privacy of private life under Article 134 of the TCK is subject to investigation and prosecution upon complaint. In the absence of circumstances requiring an immediate acquittal decision within the scope of Article 223/9 of the Criminal Procedure Code (CMK), considering that the victim declared in their statement dated 22.10.2013, taken during the investigation stage, that they withdrew their complaint against the defendant and that there are no grounds requiring an immediate acquittal decision in the file, the case opened against the defendant should be dismissed in accordance with Article 134/2, 139/1, 73/1 of the TCK, and Article 223/8 of the CMK due to the non-fulfillment of the complaint condition in the prosecution. However, contrary to this, the trial continued, and a conviction was unlawfully rendered for the offense of unlawfully obtaining or disclosing data,

As it is deemed that the objections raised by the defendant’s counsel in the appeal are valid due to the violation of the law, the judgment is hereby REVERSED in accordance with Article 321 of the repealed Code of Criminal Procedure numbered 1412, which is still in effect under Article 8 of Law No. 5320; 

The Decision of the Supreme Court on the Copying and Use of Publicly Shared Photos (Supreme Court 12th Criminal Division Case Number: 2018/713, Decision Number:  2018/4817)

In the case of the defendant, whose act of copying the plaintiff’s profile picture from the internet and putting it on their own Facebook account without consent was accepted as proven, a verdict of conviction should have been issued for the offense of unlawfully obtaining or data as stipulated in Article 136/1 of the Turkish Penal Code. However, the written verdict of acquittal is contrary to the law. Therefore, as the appeals of the plaintiff’s attorney are well-founded in this regard, the verdict is ANNULLED, in accordance with Article 8 of Law No. 5320, and as per Article 321 of the former Code on Criminal Procedure No. 1412, which is still in force, a verdict of non-prosecution is to be rendered. This decision was made unanimously on April 25, 2018.

  • Qualified Versions 

According to Article 137 of the TCK,

(1)  Where the offenses defined in the above articles are committed;  

  1. a) by a public official misusing his power derived from his public post, or  
  2. b) by benefiting from the privileges derived from a profession or trade.  the penalty to be imposed shall be increased by one half.
  • Destruction of Data 

According to the Article 138 of TCK,

(1)   Any person who fails to destroy data in accordance with the prescribed procedures, before the expiry of the legally prescribed period for destruction shall be sentenced to a penalty of imprisonment for a term of one to two years.

(2) Where the subject of the offense remains within the scope of the information to be removed or eliminated under the provisions of the Code of Criminal Procedure, the penalty to be imposed shall be increased by one fold.  

  • Complaint 

According to Article 139 of TCK, Excluding the offenses of Recording of Personal Data, Illegally Obtaining or Giving Data and Destruction of Data, the commencement of an investigation and prosecution for the offenses listed in this Part are subject to complaint.

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