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REPUBLIC OF TÜRKİYE
COURT OF CASSATION
12TH CRIMINAL CHAMBER
Merits No: 2015/35
Decision No: 2015/7819
Date of Decision: 11/05/2015
ACTION: Upon appeal by the participating victim (katılan) against the judgment regarding the acquittal of the defendant for the crime of violating the privacy of private life, the file was examined and deliberated:
In the incident where the defendant and the participating victim were friends for a period, after which their friendship ended; where during their relationship, the defendant posted photographs taken side-by-side with the participating victim on his own Facebook page; and where after their friendship ended, despite the participating victim requesting the defendant to remove the photographs, the defendant did not remove the subject photographs:
From the scope of the file, although the exact date when the photographs taken during the period when the defendant and the participating victim maintained their relationship until September 2012 were posted on Facebook could not be determined, they were posted by the defendant on his own Facebook page during the period when the parties were together, and as of that period, the participating victim raised no objection thereto;
According to the statement of the participating victim, she wished to break up with the defendant in September, but the defendant wished to continue the relationship; in October 2012, the participating victim filed a criminal complaint against the defendant on allegations that he threatened her, but subsequently waived her complaint regarding the threat act; thereafter, on 12/12/2012, the participating victim filed a complaint on allegations that the subject photographs were still being shared on the defendant's Facebook page, and as stated in the indictment, it was specified that as of the date of complaint, the photographs were present on the defendant's Facebook page;
Considering that in his statement given to the Prosecutor's Office, the defendant took down the subject photographs at the end of December 2012; taking into account that prior to the date of complaint, the participating victim complained against the defendant due to the crime of threat, and that the message sent by the defendant to the participating victim stated "those pictures are also mine, I post them on my Facebook if I want or not, I don't account to anyone and you better know it like that", it must be accepted that the participating victim wished to break up with the defendant in September; and although the subject photographs were shared on the defendant's own page with the consent of the participating victim, consent can no longer be mentioned after the participating victim requested the removal of the photographs, and the defendant failed to remove them even though he ought to have done so;
It is understood that the date when the photographs were posted on the website named Facebook holds no importance, and that the material issue is whether the consent of the participating victim continued as of the date of complaint and whether the photographs were present on Facebook;
While the defendant ought to have been sentenced pursuant to the 1st sentence of TPC Article 134/2-1 for his act fitting the publication of the photograph taken side-by-side with the participating victim on Facebook, rendering an acquittal decision based on grounds inconsistent with the occurrence and the scope of the file, stating that "the date when the photograph taken together with the participating victim was uploaded to the website named Facebook could not be determined precisely, that is, it could not be determined precisely whether he uploaded it without consent after breaking up with the participating victim", was unlawful;
According to acceptance and application as well: Acting contrary to Article 232/6 of the Code of Criminal Procedure (CMK) by failing to show the applied statute and article while establishing an acquittal judgment regarding the defendant in the short decision constituting the essence of the judgment and in the verdict section of the reasoned decision;
Because it is contrary to law and the participating victim's appeal objections are deemed well-founded for this reason, it was decided by majority vote on 11/05/2015 that the judgment be REVERSED (BOZULMASINA) contrary to the opinion, pursuant to Article 321 of Code No. 1412 (CMUK), which remains currently applicable by virtue of Article 8 of Law No. 5320.
We do not agree with the majority's opinion regarding reversal, as we consider that the local court judgment regarding the acquittal of the defendant was appropriate because the crime of "disclosure of images relating to private life via press and broadcast" did not materialize in the incident developing upon the defendant's failure to remove passport-style photographs taken with the consent of the participating victim showing their head area from his own Facebook page.
Namely:
During the period when emotional closeness existed between the participating victim and the defendant, the defendant posted pictures containing a photograph taken in passport-style frames where the participating victim was kissing the defendant on the cheek, along with several side-by-side passport-style photographs, onto his own Facebook page with the consent of the participating victim.
It must be emphasized whether these photographs constitute images within the scope of privacy of private life protected by the penal provisions of the Turkish Penal Code.
First of all, we must state that these photographs of the participating victim and defendant fall within the scope of private life. According to the generally accepted theory, when we examine a person's life in three spheres, we encounter the secret sphere of life (gizli hayat alanı), the private sphere of life (özel hayat alanı), and the public sphere (kamuya açık alan).
The Secret Sphere of Life: This is the sphere consisting of events, states, and relationships that a person under normal circumstances shares with no one, keeps reserved only for oneself, and does not want anyone to know, or opens only to persons in whom maximum trust is held. This sphere may include primarily one's sexual life, nudity, thoughts, and beliefs, as well as health, personal relationships, and external life such as letters, telegrams, and diaries. This sphere of life is inviolable.
The Private Sphere of Life: This encompasses events and actions that do not fall within a person's secret life but which one wishes to share with a limited number of persons in close relationships, such as family, relatives, and friends. This sphere of life is not as inviolable as the secret sphere of life.
The Public Sphere: This is the sphere containing events and actions that a person is not bothered by others knowing, open to everyone, and where there is no harm in freely disclosing. (Hamide Zafer, Protection of the Secret Sphere of Private Life through Criminal Law, Istanbul 2010, 1st Edition, p. 13)
What the penal provisions of the Turkish Penal Code extend absolute protection to is the secret sphere of private life. Besides this, states and relationships that are within the private sphere of life and public spheres but under protection like the secret sphere of life may also exist. For example, continuously following a person in these spheres, or recording one's images and sounds falls within the scope of private life and must also be protected with criminal sanctions. The right to privacy of private life is a form of "right protecting the person against third parties who have no right from learning one's private and secret life, events, and information." Infringement occurs through the person who has no right learning it personally, or through notifying—that is, disclosing—these events or information to persons who learned them rightfully or wrongfully. (Güçlü Akyürek, The Offense of Violation of Privacy of Private Life, Ankara 2015, 2nd Edition, p. 50)
When we look at it in terms of the incident subject to the file, the photographs of the defendant and the participating victim are in the private sphere of life and must be protected by penal provisions. However, the defendant, who is the other party to this private life, posted these photographs onto his Facebook page with the consent and knowledge of the participating victim.
Following the withdrawal of this consent, the failure to remove these photographs from the said social networking platform does not constitute a crime. Following the withdrawal of consent, the defendant ought to have removed these photographs. In the event that the defendant remained inactive due to this incident, the problem must be resolved by acting upon the regulation in the special law. For this, an application for content removal and access blocking must be made pursuant to Article 9 of Law No. 5651 (Law on the Regulation of Publications Made on the Internet and Fighting Against Crimes Committed Means of These Publications).
For these reasons we have explained, because the participating victim ought to have acted according to the provisions of Law No. 5651 for the removal of her photographs taken together with the defendant and posted on the defendant's Facebook page after the withdrawal of her consent, we do not agree with the honorable majority's opinion regarding reversal.
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