Words or conduct that offend a person’s honour and belittle them are generally described by the concept of insult. This act need not necessarily take place in the presence of the victim; where the conditions sought by the law are met, the offence may be constituted even if the victim is not present. Proceeding from this flexibility, the legislature has accepted that the same offence may also be committed through digital publications and social network posts.
The Turkish Penal Code treats the commission of the act through information systems as a separate aggravating ground. In other words, a person who targets another’s honour on platforms such as Facebook, Twitter or YouTube faces the aggravated form of the sanction provided by the law. The reason for this is clear: one of the very purposes of social networks is that the content shared reaches a far larger audience than could be reached in a physical setting. A person who shares content amounting to an offence is deemed to have knowingly and willingly accepted the dissemination of that content. The special provision governing publicity is Turkish Penal Code Art. 125(4), under which the penalty is increased by one sixth. An insult committed publicly and by means of the internet is therefore an aggravated form that results in an increased penalty.
While social networks facilitate access to information, the exchange of ideas and social interaction, they have also brought with them the phenomenon of cyberbullying. Malicious users who open fake profiles that cannot be identified are able to write degrading comments about others or to spread humiliating content. Since posts of this kind made from fake accounts may constitute an offence under criminal law, various legal remedies are available to those subjected to such conduct.
What Is the Offence of Insult?
This type of offence is regulated in Articles 125 to 131 of Turkish Penal Code No. 5237, in the chapter headed “Offences Against Honour”. The offence has two distinct forms of appearance: on the one hand, attacks directed at a person’s honour, dignity and reputation by way of abusive language; on the other, the attribution to a person of a concrete act or fact to a degree that injures their honour, dignity and reputation. Each of these forms of conduct is sufficient in itself for the offence to be constituted.
These two forms of conduct constitute the material element of the offence. The act may be committed in the presence of the victim, and there is likewise no obstacle to its commission in the victim’s absence. The law also separately regulates insult committed by means of an audio, written or visual message. The extent to which the internet and social media are used today makes this mode of commission all the easier.
The provision that concerns us here reads as follows:
Turkish Penal Code No. 5237, Art. 125(2)
“Where the act is committed by means of an audio, written or visual message addressed to the victim, the penalty specified in the preceding paragraph shall be imposed.”
As the text makes clear, whatever technical means is used to convey the offensive expressions to the victim over the internet or social networks, the sanction relating to the offence of insult is applied to the perpetrator.
Which Expressions Count as Insult Online?
There is no closed list setting out one by one the words that constitute this offence. The criterion is this: any attack made through the internet that injures a person’s dignity, honour, standing and reputation, that wounds them, and that amounts to abusive language falls within this scope. The examples most frequently encountered in practice are degrading labels such as “idiot”, “stupid” or “disgraceful” directed by one user at another; there is no doubt that these constitute an offence.
Beyond these, negative and insulting comments written with the aim of undermining a person’s mental and physical integrity by targeting their outward appearance or the photographs they share may also fall within the scope of the offence. Even highlighting in bad faith a characteristic that the person genuinely possesses, solely for the purpose of humiliating and wounding them, may give rise to this offence.
On the other hand, criticism directed at widely known persons such as artists, sportspeople or politicians does not, as a rule, constitute an offence. However, where criticism exceeds its limits and reaches the level of abusive language and insult, it becomes possible to speak of an offence.
Insult or Threat?
Which type of offence a given violation falls under can from time to time give rise to confusion. Yet a legal examination of the elements of the offence shows that a threat made over the internet is an entirely separate offence from insult, both in the manner of its commission and in its consequences.
A threat arises where a person is notified that they will be subjected to unjust harm or ill-treatment; it is sufficient for the offence to be constituted that the victim is informed that serious and unjust harm will be inflicted. In the case of insult, by contrast, no such intention to cause harm or ill-treatment is required.
The ways in which a threat may be committed, particularly over social networks, and the remedies available to the victim, are addressed separately in our note entitled Threats Made Through Social Media and the Internet.
Finally, it should be noted that posts made in the exercise of fundamental rights such as the right of petition, freedom of the press and of publication, and the immunity attaching to allegation and defence cannot be said to constitute the offence of insult.
Difficulties Encountered in Proving the Offence
Where an insulting comment or post is published on a platform such as Twitter, Instagram or Facebook, it is technically quite straightforward to reach a physical address if the perpetrator’s IP address can be obtained. The companies operating these applications, however, take an extremely strict stance against sharing the IP information associated with accounts, on the ground of the protection of personal data. For this reason, the authorities dealing with complaints turn to different investigative methods in order to reach the perpetrator. In practice, victims often also submit to the authorities information concerning the persons they suspect may have committed the act, and the investigation focuses primarily on those persons. Thanks to other evidence gathered and additional enquiries carried out, it may prove possible to reach the perpetrator and to prove the offence.
For details on this subject, our note entitled Is an IP Address Sufficient to Identify the Offender? may be consulted.
Steps to Be Taken by a Person Subjected to Insult
The first step to take upon encountering an insulting post on social media is to make a record of the content, against all eventualities. The user account through which the post was made should then be reported through the relevant platform, and the site administration should be asked to close the account so that no further harm arises. If the account is fake, the platform will shortly send the account holder a warning to remove the posts or close the account and, if considered necessary, will suspend the account outright.
At the next stage, a complaint should be made in respect of this post, which amounts to an attack on personality rights, by applying to the Chief Public Prosecutor’s Office or to the nearest police unit. In practice, victims generally make their application by way of a written petition containing the link to the content in question, a screenshot of the post and all the details of the incident.
Since the companies referred to do not, as a rule, share with the investigating authorities the IP addresses from which the post in question was made, the prosecutor’s office requests that an IP enquiry be carried out by TİB. If the suspect can be reached as a result of these enquiries, their statement is taken. If, after the evidence has been gathered, the prosecutor’s office concludes that the offence of insult through social media has been constituted, it draws up an indictment seeking punishment and sends it to the court with subject-matter and territorial jurisdiction. Once the indictment is accepted, criminal proceedings are brought against the accused on the allegation that they committed the offence of insult by means of the internet. If, on the other hand, evidence strong enough to establish that the offence was committed cannot be obtained, or the evidence gathered shows that the act does not constitute an offence, the prosecutor’s office decides that there are no grounds for prosecution; in practice this decision is referred to as a decision of non-prosecution.
However, since Twitter and Instagram have no representative office in our country, identifying the person behind a fake account becomes considerably more difficult. For this reason, in order to forestall a possible decision of non-prosecution, the complaint petition should include every kind of information capable of making it easier to establish the suspect’s identity. If the suspect’s address and other details have been ascertained, these should be attached to the petition together with the evidence obtained and, without fail, a copy of the insulting post.
How long the investigation will take depends on the workload of the prosecutor’s office and on the level of detail of the offence and the evidence; in practice this period is at least 6 months and is often considerably longer.
Measures That May Be Sought to Protect Personality Rights
A person whose personality rights have been injured through insult over the internet, and in particular over social media, may seek protection from the court.
Turkish Civil Code No. 4721, Art. 24
“A person whose personality right is unlawfully attacked may request the judge for protection against those committing the attack.”
Turkish Civil Code No. 4721, Art. 25
“The claimant may request the judge to prevent the risk of an attack, to put an end to an ongoing attack, or to determine the unlawfulness of an attack which has ceased but whose effects continue. The claimant may in addition request that a correction or the judgment be notified to third parties or published.”
The function of this provision, given that proceedings in our country can take a long time, is to prevent the victim from suffering fresh violations of their rights while the violation complained of is under judicial examination.
Statute of Limitations
The limitation period for bringing an action in respect of the offence of insult is set at 8 (eight) years. Within that period, the right of complaint must be exercised within 6 (six) months of learning of the act and of the perpetrator. If the perpetrator and the act cannot be learned of during the eight-year period, the offence becomes time-barred and it is no longer possible to conduct an investigation or prosecution.
Complaint
Insult is among the offences whose prosecution is subject to complaint. It is not sufficient for the prosecutor’s office merely to become aware of the offence, as it has no power to open an investigation of its own motion. For the process to proceed, the victim must lodge a complaint.
The victim must exercise the right of complaint within 6 months from the moment they learn of the insulting post; once that period has elapsed, the right of complaint is deemed to have lapsed. For detailed information, our note entitled How Is a Complaint Made in Respect of Cybercrime? may be consulted.
Withdrawal of the Complaint
A victim who has lodged a complaint may subsequently withdraw it. Withdrawal may take place at both the investigation and the prosecution stage. However, for a withdrawal at the prosecution stage to take effect, the accused must accept it. The accused may decline to accept the withdrawal and ask for the proceedings to be concluded; indeed, an accused who believes they will be acquitted may prefer their innocence to be established by a court judgment and request that the proceedings continue. If the complaint is withdrawn at the prosecution stage and that withdrawal is accepted, the action already brought is discontinued. Once a complaint has been withdrawn, the right of complaint cannot be exercised again; in other words, a withdrawal cannot be reversed.
Court with Subject-Matter and Territorial Jurisdiction
The court with subject-matter jurisdiction over the offence of insult committed by means of the internet is the Criminal Court of First Instance.
In practice, doubt may arise as to whether Art. 9 of Act No. 5561 on the Regulation of Publications Made on the Internet and Combating Crimes Committed by Means of Such Publications applies to this offence. That provision states that decisions concerning the restriction, suspension and blocking of internet access may be given by the Criminal Courts of Peace, and that courts of first instance may therefore not order measures of this nature. That being said, the Act in question applies only to the specific offences listed as a catalogue in its text, and insult and defamation do not appear in that catalogue. For this reason, since insult by means of the internet falls outside the scope of special Act No. 5561, it cannot be said that the Criminal Court of Peace has jurisdiction.
A person subjected to insult over the internet may apply by way of complaint for the act to be punished and may also bring a separate action seeking pecuniary and non-pecuniary damages.
For details on the offences that may be committed by means of the internet and their sanctions, addressed in a broader framework, our note entitled Do You Know About Internet Offences and Their Penalties? may be consulted.
The Investigation and Prosecution Stages
The Investigation Stage
We noted above that insult is an offence subject to complaint. In order for a criminal investigation to be conducted in respect of the perpetrator and for them subsequently to be tried before a criminal court, a criminal complaint must first be made to the competent authorities. Criminal proceedings are accordingly set in motion by the victim’s application, and the investigation, which is the first stage of the proceedings, thereby begins. The investigation is conducted by the public prosecutor; acting upon a report or a complaint, the prosecutor investigates the material truth and gathers the evidence. Identifying the perpetrator, establishing whether the act that took place bears the elements of an offence, and enquiring into whether that act was committed by the perpetrator all fall within the scope of this stage.
The greatest difficulty in investigations into insult committed by means of the internet is how quickly insulting publications can be removed. As is known, the likelihood that content of this nature can be deleted from the internet at the touch of a single key is extremely high. Even where the prosecutor’s office conducts an enquiry of its own motion, gathering the evidence as quickly as possible is therefore of great importance. In our view, in order to avoid any loss of rights, the possibility that evidence may be destroyed in the course of the process should be borne in mind, and one should not be content merely with making a criminal complaint. It is also essential to request the competent authorities to gather the evidence and to follow the process closely so that no delay occurs.
The Prosecution (Trial) Stage
Once the indictment drawn up is accepted by the criminal court of first instance, the proceedings pass to the prosecution stage. There is now a criminal action. At this stage the judge assesses the evidence in the file, conducts enquiries of the court’s own motion where necessary, and imposes the appropriate penalty on the person who committed the act.
Frequently Asked Questions
Does merely liking an insulting post constitute an offence? The Criminal Chambers of the Court of Cassation have held that merely liking an insulting post on social media does not amount to transmitting it to others and therefore does not make out the elements of the offence.
How does the investigation conclude if the parties reach a settlement? Where the parties reach a settlement at the investigation stage, the public prosecutor decides that there are no grounds for prosecution.
May a complaint be withdrawn at any stage? Withdrawal is possible at both the investigation and the prosecution stage; however, a withdrawal made while the proceedings are ongoing takes effect only if the accused accepts it.
What is the penalty for the offence of insult? The sanction provided is imprisonment from 3 months to 2 years or a judicial fine. It is also possible for only a judicial fine to be imposed on the accused.
Independent Legal Assessment
What is decisive in disputes concerning insult committed in the digital environment is, more often than not, not the legal characterisation of the act but how quickly and completely the evidence is secured. Taking a screenshot, recording the link and documenting the date and time of the post form the basis of every subsequent stage. Against this, the short complaint period and the reticence of the platforms in sharing data make it essential to plan the process from the outset.
It should also not be forgotten that criminal proceedings alone are not sufficient, and that civil actions for the protection of personality rights and requests for access blocking must frequently be pursued alongside them. In setting a road map in a particular file, the following headings take priority:
- Recording the evidence without delay and in a verifiable manner, against the possibility that the content may be deleted
- Documenting the date on which the act and the perpetrator were learned of, so that the 6-month complaint period is not missed
- Submitting in the complaint petition, in a single body, all data that will make it easier to establish the suspect’s identity
- Characterising correctly from the outset whether the post amounts to insult, to a threat, or remains within the bounds of criticism
- Assessing, alongside the criminal process, actions for pecuniary and non-pecuniary damages and for the protection of personality rights
- Raising requests for the blocking of access and the removal of the content at the same time
Independent Legal provides advisory services throughout the entire process in the field of information technology law, from preparing the complaint application to pursuing access blocking requests and conducting actions for damages.