TMT and Intellectual Property

Does “Liking” and “Retweeting” a Content on Social Media Constitute the Crime of Insult in Turkish Law

Today, social media is a form of communication used by people from all walks of life and all ages. Social media posts are produced by users and shared on various channels such as Facebook/Twitter.  Users do not always produce content, they can like and share contents produced by other users. Therefore, users may also be legally responsible for illegal contents that they did not produce themselves. In this article, we will observe whether liking (Like) and re-sharing (Retweet) social media content will constitute a crime of insult in the view of the precedents of the Court of Cassation and the Melike v Turkey decision of the European Court of Human Rights(ECHR).

 

Crime of Insult in Turkish Penal Code

 

Attributing an act, or fact, to a person in a manner that may impugn that person’s honour, dignity or prestige, or attacking someone’s honour, dignity or prestige by swearing constitutes the crime of insult. The crime of insult is regulated in Article 125 of the Turkish Penal Code. It is possible for the act to be committed by means of an oral, written or visual message, addressing the victim. In the fourth paragraph of Article 125, it is stated that if the insult is committed in public, the penalty will be increased.

 

Does Committing the Crime on Social Media an Example of Committing the Crime in Public?

 

In the decision of the 12th Penal Chamber, it has been stated that the committing the act that caused to the crime of insult on the social networking site Facebook constitutes the insult in public. In this regard, it was stated as the reason that “the act considered to constitute the crime of insult is unspecified and has the possibility to be perceived by more than one person. In other words, in case of committing the crime of insult on social media, the penalty will be increased in accordance with Article 125/4 of the Turkish Penal Code.

 

The Court of Cassation Promote the Idea that Retweeting Will Create Crime of Insult

 

Based on the decisions of the Court of Cassation, we can say that; The Court considers that sharing of insulting content via retweet as a crime of insult. In addition, the Court of Cassation makes a distinction between liking and sharing (retweet). In a decision of the 4th Penal Chamber, it was stated that only the act of liking does not constitute a crime of insult if the post isn’t shared on the internet and not transferred to others.

 

The Labour Court is in the Opinion that the Facebook Posts Which the Applicant Clicked on the “Like” Button Are Not Within the Scope of Freedom of Expression

 

In the decision of European Court of Human Rights, the termination of employment due to the employee’s “liking” of an insulting post on Facebook was described as a violation of freedom of expression. The litigation process of the act, which is the subject of this decision, was summarized as follows:

The applicant was sentenced for clicking the “Like” button under various insulting posts made by third parties on Facebook.  The applicant filed a lawsuit for the cancellation of the annulment of her employment contract and requested her reemployment. The Labour Court rejected the applicant’s request, stating that the Facebook posts on which the applicant clicked the “like” button were not within the scope of freedom of expression and the contents of the posts would disturb the peace and tranquillity in the workplace. The Constitutional Court did not accept the individual application of the applicant on the grounds that “she could not prove her claim regarding the right to freedom of expression”. Thereupon, the applicant applied to the ECHR about the violation of freedom of expression.

 

The European Court of Human Rights Has Ruled That the Freedom of Expression Has Been Violated.

The ECHR has unanimously ruled that Article 10 of the European Convention on Human Rights, which regulates freedom of expression, has been violated. The Court has determined that “The use of “likes”, which could be regarded as enabling people to show their interest in and approval of content, was, as such, a common and popular form of exercising freedom of expression online.” The Court drew attention to the following issue, “given the nature of her position (cleaner at Ministry of National Education) the applicant could not have been particularly well-known and had only limited representative status in her workplace, and her activities on Facebook could not have had a significant impact on pupils, parents, teachers and other employees.” In the decision it is also stated that; “the applicant had not been a civil servant with a special bond of trust and loyalty to her hierarchy, but a contractual employee subject to employment law. In private law employment relations, the duty of loyalty that employees owe to their employers cannot be as strong as that of civil servants. The Court reached a conclusion that the sentence imposed was too heavy considering the applicant’s age and seniority in her job and the Court awarded just satisfaction.

 

The Court of Human Rights Has the Opinion That a Distinction Should Be Made Between “Retweet” and “Like”

 

In a part of the decision, it was stated that “liking the content cannot be considered to have the same weight as sharing content on social networks “The fact of adding a “Like” to content could not be considered to carry the same weight as sharing content on social networks. In this regard, it is given as the justification that the “Like” button will merely express sympathy for the published content and not an active desire to disseminate it. As it was described the Court has the opinion that a distinction should be made between “retweet” and “like”.

 

Ekin Kocaman

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