Violation Of The Privacy Of Private Life By Disclosure Of Images Or Sounds – The Victim Could Have Foreseen That The Video Could Be Published
Summary: According to the victim’s words in the video footage recorded at a house with her consent; “… I am sorry to say this, let our prime minister hear this… if he is my prime minister, let him hear my voice… goodbye to all of you, God rest you all. “ and according to the scope of the file; the legal elements of the crime of violating the confidentiality of private life by disclosing the images or sounds uploaded to the defendant did not occur in the concrete case, as the legal elements of the crime of violating the confidentiality of private life by disclosing the images or sounds uploaded to the defendant did not occur in the concrete case, and considering that the video was transferred to the defendant’s mobile phone with the knowledge of the victim and disclosed, and considering that the victim should have foreseen that the video could be published, considering the above-quoted words in the video, the defendant’s action should be considered as Article 136/1 of the TPC. It should be accepted that the defendant’s action will not constitute the offense of unlawfully transmitting or obtaining data under Article 136/1 of the TCC.
Republic of Turkey Court of Cassation 12th Criminal Chamber E: 2018/5377 K: 2018/11368 K.T.: 28.11..2018
The judgment regarding the conviction of the defendant for the offense of violating the confidentiality of private life by disclosing images or sounds was appealed by the local public prosecutor and the defendant, and the file was examined and the necessity was considered:
According to the trial, the evidence collected and shown in the decision, the court’s opinion and appreciation formed in accordance with the results of the prosecution, and the scope of the file examined, the local public prosecutor’s decision was made based on incomplete investigation, and the other objections of the defendant’s appeals regarding the submission and the defendant’s other appeals that are not based on a reason are rejected, however;
1- In the incident subject to the allegation and acceptance that the victim … who works as a cemetery attendant, wearing a shroud, criticizing those who make politics based on ethnic origin and a terrorist organization, and making statements that he is not afraid of death and loves his homeland, was published on the social networking site called facebook by the defendant …, who worked in the same cemetery with him and whose friendship relationship ended due to a problem between them, and that the defendant committed the crime of violating the privacy of private life by disclosing the images or sounds in Article 134/2 of the Turkish Penal Code;
According to the victim’s words in the video footage recorded at a house with her consent; “… I am sorry to say this, let our prime minister hear this… if he is my prime minister, let him hear my voice… goodbye to all of you, God rest you all. “ and according to the scope of the file; the legal elements of the crime of violating the confidentiality of private life by disclosing the images or sounds attributed to the defendant did not occur in the concrete case, since the image and conversations of the victim in the video in question are not related to the victim’s private life and are not of a nature to violate the confidentiality of his private life, as well as the fact that the video was transferred to the defendant’s mobile phone within the knowledge of the victim and disclosed, and considering that it should have been foreseen by the victim that the video could be published, considering the words quoted above in the video, it is understood that the defendant’s action will not constitute the crime of violating the confidentiality of private life by illegally giving or obtaining data under Article 136/1 of the TPC. Since it is understood that the act of the defendant will not constitute the offense of unlawfully giving or obtaining the data in Article 136/1. of the TPC, it should be decided to acquit the defendant of the offense of violating the confidentiality of private life by disclosing the images or sounds attributed to the defendant in accordance with Article 223/2-a, paragraph and subparagraph of the Code of Criminal Procedure, but to convict the defendant on written grounds that are not legal and sufficient,
2- According to the acceptance and application:
The deprivation of rights written in subparagraph (c) of paragraph (1) of Article 53(1) of the TCC, as a legal consequence of the conviction to imprisonment for the crime committed intentionally, should be ruled against the defendant, whose long-term imprisonment sentence was postponed, by taking into consideration Article 53/3 of the same law. and the Constitutional Court’s annulment decision dated 08.10.2015 and numbered 2014/140 main, 2015/85 decision, published in the Official Gazette dated 24.11.2015 regarding the deprivation of rights in Article 53 of the TCC,
Since the appeals of the local public prosecutor and the defendant are deemed appropriate in this respect, it was unanimously decided on 28.11.2018 to VACATE the verdict contrary to the request in accordance with Article 321 of the Code of Criminal Procedure No. 1412, which is still in force in accordance with Article 8 of the Law No. 5320 for these reasons.