Social media is a digital sharing environment that touches almost every area of daily life. Millions of users, regardless of geography or age, use these channels to meet new people, circulate images and video content, and even to join events such as concerts. Yet alongside positive functions such as staying informed, exchanging views and socialising, one of the most conspicuous harms these environments produce is cyberbullying. Certain ill-intentioned users create fake accounts designed to prevent their identity from being discovered, and from those accounts produce demeaning content about others or insult them directly. Because some such posts amount to an offence under the Turkish Penal Code, various legal avenues are available to the persons targeted.
Through these platforms individuals are able to communicate not only with people they know but also with users they have never met, whom they would in practice have almost no chance of encountering in real life, even at the far side of the world. For some users this borderless reach has created a perception of a safe space in which they may wound others without facing any sanction. Those subjected to degrading words and imputations may in turn choose to resort to judicial remedies against conduct that is contrary to both law and morality.
Which Expressions Constitute the Offence of Insult?
There is of course no closed list setting out one by one the words that constitute the offence of insult committed over the internet. To draw a general framework, any attack made online that wounds a person’s honour, dignity, reputation and standing, that belittles them, or that takes the form of abuse, falls within the scope of this offence. Its most frequently encountered form in practice consists of expressions such as “idiot”, “stupid” or “dishonourable” directed at a user; that such words constitute an insult is beyond dispute.
Beyond these, writing negative comments on a person’s physical appearance or on the photographs they have posted, with the aim of undermining their mental and bodily integrity, may also amount to an offence. Indeed, even drawing attention to a characteristic the person actually possesses may be characterised as an insult where it is done in bad faith and solely with the intention of belittling them.
Criticism directed at persons widely known to the public, such as artists, sportspeople or politicians, does not as a rule constitute an offence. Where, however, the bounds of criticism are exceeded and the level of abuse and insult is reached, criminal liability arises.
The Distinction Between Insult and Threat
In some incidents there is uncertainty as to whether the infringement encountered is to be treated as an insult or as a threat. Examined through the elements of the offence, however, the offence of threat committed in the internet environment is entirely distinct from insult, both in the manner in which it arises and in the consequences it produces.
A threat arises where a person is notified that they will be caused unjust harm or ill. For the offence to arise it is sufficient that notice has been given that serious and unjust harm will be directed at the victim. In insult, by contrast, the perpetrator’s aim is not to cause the victim harm or ill.
The ways in which the offence of threat may be committed through social media, and the avenues open to victims, are examined in our note entitled Threats Through Social Media and the Internet.
On the other hand, social media posts made within the scope of fundamental rights such as the right of petition, freedom of the press and of publication, and the immunity of claim and defence cannot be said to constitute the offence of insult. For the detail of this subject, our article entitled The Offence of Insult Through Social Media and the Internet may be consulted.
Identifying the Perpetrator and Proving the Offence
Where an insulting comment or post is shared through an application such as Instagram, Facebook or Twitter, reaching the perpetrator’s physical address through the IP address is technically extremely straightforward. The companies operating these applications, however, follow a very strict policy of not disclosing the IP information attached to accounts, on the ground of the protection of personal data. The authorities examining the complaint are therefore obliged to turn to other methods of investigation in order to reach the perpetrator. Indeed, in practice victims most often also submit to the file information concerning persons they suspect of having committed the offence, and the investigation concentrates first on those names. Through the additional enquiries carried out and the other evidence gathered, the identity of the perpetrator can be established and the offence proved. On this subject our note entitled Is an IP Address Sufficient to Identify the Offender? may be examined.
Time Limit for Complaint and Limitation
Insult is among the offences whose prosecution depends on a complaint. The prosecution office therefore has no power to open an investigation of its own motion even where it becomes aware of the act; for the process to run, a complaint by the victim is required.
The victim must exercise the right of complaint within 6 months from the date on which they learn of the insulting post; once that period has passed, the right of complaint is treated as lapsed. For the detail of how the application is to be made, our article entitled How Is a Complaint Made in Information Technology Offences? may be consulted.
The Process from Complaint to Judgment
Where insulting content is encountered on social media, the first step to be taken is to record the post, against every eventuality. At the next stage, the user account concerned should be reported through the platform on which the content was published, and a request should be made for the account to be closed so that the harm does not grow. If the account is a fake one, the platform will within a short time send the account holder a warning to remove the posts or close the account; where considered necessary, the account is suspended directly.
Thereafter, a complaint should be lodged in respect of the post constituting an attack on personality rights, by going to the Chief Public Prosecutor’s Office or the nearest police unit. In practice victims generally apply by written petition setting out the link address of the content in question, a screenshot of the post and all the details of the incident.
Since companies such as Twitter, Facebook and Instagram tend not to share with investigating authorities the IP addresses from which posts were made, the Prosecution Office requests an IP enquiry from the TİB. Where the suspect can be reached as a result of those enquiries, their statement is taken. In the light of the evidence gathered, if the prosecution office concludes that the offence of insult through social media has been committed, it draws up an indictment and sends the file to the court with subject-matter and territorial jurisdiction, seeking the punishment of the suspect. Where the indictment is accepted by the court, criminal proceedings are opened against the accused. If, by contrast, evidence sufficient to establish that the offence was committed cannot be obtained, or the available evidence shows that the act did not occur, the prosecution office rules that there are no grounds for prosecution; that decision is known in practice as a decision of non-prosecution.
Because Twitter and Instagram have no representative office in Türkiye, identifying the person behind a fake account becomes considerably more difficult. In order to forestall a possible decision of non-prosecution, it is therefore important that the complaint petition include every piece of information capable of shedding light on the identity of the suspect. If it has been established, the suspect’s address and other details, the evidence obtained and a copy of the insulting post forming the subject of the complaint should without fail be annexed to the petition.
How long the investigation will take varies according to the workload of the prosecution office and the extent of the evidence in the file; in practice this period is at least 3 months and in some files may be longer still.
Seeking Protection from the Court
A person whose personality rights have been harmed by being insulted in the internet environment, above all on social media applications, may seek protection from the court.
Turkish Civil Code Art. 24
“A person whose personality right is unlawfully attacked may request the judge for protection against those making the attack.”
Turkish Civil Code Art. 25
“The claimant may request the judge to prevent the threat of an attack, to put an end to an attack that is continuing, and to determine the unlawfulness of an attack that has ended but whose effects continue. The claimant may in addition request that the rectification or the judgment be notified to third parties or be published.”
Given that judicial proceedings in our country can take a long time, the purpose of this provision is clear: to prevent the person from suffering further loss of rights while the infringement forming the subject of the complaint is being examined before the courts.
Courts with Subject-Matter and Territorial Jurisdiction
The judicial authority with subject-matter jurisdiction over the offence of insult through the internet is the Criminal Court of First Instance.
At this point, confusion can arise as to whether Art. 9 of the Act No. 5561 on the Regulation of Publications Made in the Internet Environment and Combating Offences Committed Through Such Publications applies to the offence of insult. That provision states that, since decisions on restricting, suspending and blocking internet access may be given by the Criminal Courts of Peace, interim measures relating to such situations cannot be taken by the courts of first instance. That Act, however, applies only to the specific offences listed in catalogue form in its text, and insult and defamation do not appear in that catalogue. Accordingly, since the act of insult over the internet falls outside the scope of that special Act, the Criminal Court of Peace cannot be said to have subject-matter jurisdiction.
A person insulted in the internet environment may lodge a complaint for the act to be punished, and may in addition bring a separate action claiming pecuniary and non-pecuniary damages. For a more comprehensive framework covering the whole range of offences that may be committed online, our article entitled Do You Know About Internet Offences and Their Penalties? may be examined.
Independent Legal Assessment
In files concerning insults originating from fake accounts, the real difficulty lies not in the legal characterisation but in uncovering the identity of the perpetrator. The approach of foreign-based platforms to data sharing, and the problems surrounding representation, increase the likelihood that the investigation will close for insufficiency of evidence. The evidential work done at the outset of the process therefore largely determines the fate of the file.
In devising the course to be followed in a concrete case, it is appropriate to have regard to the following matters:
- Recording the post without delay, together with its link address and date information
- Calendaring the six-month period for complaint by reference to the date on which the content was learned of
- Assessing whether the expressions exceed the bounds of criticism, taking into account also whether the person addressed is a public figure
- Annexing every kind of identifying information concerning the suspect to the petition, so as to reduce the risk of non-prosecution
- Planning protection and compensation claims based on personality rights together with the criminal investigation
- Making the content-removal notification through the platform simultaneously with the judicial application
Independent Legal provides advisory and litigation services throughout the entire process in cases of personality rights infringements originating from social media, from the drafting of the complaint petition to the conduct of the compensation action.