About Not Deleting Photos After Breaking Up With A Lover
12th Criminal Chamber 2017/150 E. , 2017/6231 K.
“Case Law Text”
Court :Criminal Court of First Instance
Offence : Violation of privacy
Judgement : Acquittal
The decision of the Istanbul Anatolian 2nd Criminal Court of First Instance dated 26.01.2016 and numbered 2015/503-2016/33 to resist was appealed by the participant and the file was sent to our Department for the examination of the decision to resist by the Criminal General Assembly of the Court of Cassation pursuant to paragraph 3 of Article 307 of the Code of Criminal Procedure amended by Article 36 of the Law No. 6763; and the file was re-examined and considered as necessary:
In the examined file, the defendant is charged with violating the confidentiality of private life defined in Article 134/2 of the Turkish Penal Code. Article 134/2 of the Turkish Penal Code for the offence of violating the confidentiality of private life “… As a result of the trial, from the defence of the defendant, the statement of the participant, the documents in the file and the entire file scope; it could not be determined exactly the date when the defendant, who was friends with the participant for a while,
uploaded the photo taken with the participant to the internet site named facebook, that is, it could not be determined exactly whether he uploaded it against his consent after separating from the participant, thus, in accordance with the principle of the benefit of the defendant from the doubt, the following judgement was established for his acquittal of the imputed offence…”. 03.03.2014 dated 2013/143 main, 2014/133 decision numbered verdict, upon the appeal of the participant, with the decision of the 12th Criminal Chamber of the Court of Cassation dated 11.05.2015, 2015/35 main, 2015/7819 decision numbered;
“…In the case where the defendant and the participant were friends for a while, then their friendship ended, the defendant put the photos of the participant and the defendant taken side by side on his facebook page during the defendant’s relationship with the participant, and the defendant did not remove the photos in question, although the participant requested the defendant to remove the photos after their friendship ended,
From the scope of the file, the defendant and the participant continued their relationship until September 2012 and although the exact date of the photos taken during the period when they were together could not be determined, it was put on the Facebook page belonging to him by the defendant during the period when the parties were together and the participant did not object to this as of that period, With the statement of the participant, she wanted to separate from the defendant in September, but the defendant wanted to continue the relationship, in October 2012, the participant filed a criminal complaint against the participant, claiming that the defendant threatened her, but later the participant withdrew her complaint about the threatening act,
Then, on 12/12/2012, the participant filed a complaint alleging that the photographs in question were still shared on the defendant’s facebook page, and as stated in the indictment, it was stated that the photographs were on the defendant’s facebook page as of the date of the complaint, and in the statement of the defendant at the prosecutor’s office, considering that the defendant removed the photographs in question at the end of December 2012, the participant’s complaint against the defendant for the offence of threatening the defendant before the date of the complaint and the defendant’s message to the participant in the message section “those pictures are mine, whether I put them on my face or not, I don’t answer to anyone, and you know it like this. “,
it should be accepted that the participant wanted to leave the defendant in September, and although the photographs in question were shared on the defendant’s own page with the consent of the participant, the consent of the participant cannot be mentioned after the participant asked the defendant to remove the photographs, and the defendant did not remove the photographs even though he should have removed them, It is understood that the date of placing the photographs on the internet site named facebook is not important, the important issue is whether the consent of the participant continues as of the date of the complaint and whether the photographs are found on facebook, and it is understood that the defendant should be punished in accordance with Article 134/2-1 of the Turkish Penal Code,
which applies to the act of the defendant publishing the photograph taken side by side with the participant on facebook. sentence, but to give a verdict of acquittal on the grounds that ‘the date when the defendant uploaded the photograph taken with the participant to the internet site named facebook could not be determined exactly, that is, it could not be determined exactly whether he uploaded it against his consent after separating from the participant’, which is not in accordance with the occurrence and the scope of the file,
According to the acceptance and application;
In the short decision constituting the basis of the judgement and in the judgement part of the reasoned decision, while establishing the acquittal verdict for the defendant, acting contrary to Article 232/6 of the Code of Criminal Procedure by not showing the applicable law and its article…” and it is understood that the court resisted the previous decision and the acquittal verdict dated 26.01.2016 was established.
According to the decision of the Criminal General Assembly of the Court of Cassation dated 26.11.2013, numbered 2013/50, 2013/525 and its continuous practices, even if the decision to resist has been made in form; the decision made by taking action in line with the decision of reversal, discussing the issues stated to be discussed in the decision of reversal, relying on the research, examination, new evidence collected after the reversal, and establishing a judgement with new and different justifications that are not included in the first decision and have not been subjected to the departmental control; is not in essence resistance, but a new judgement given as a result of active compliance with the reversal. In the event that a judgement of this nature is appealed, the examination should be made by the relevant department of the Court of Cassation.
Although the local court adopted the previous practice as a result of the trial held after the reversal of the judgement of our Chamber; “… As a result of the examination and evaluation made by our court upon the reversal; the reversal is not appropriate, the pictures that will be considered to be related to private life between the parties were shared on the defendant’s facebook account during the relationship process or the complainant explicitly consented to this,
the failure to remove the pictures from the page when requested from the defendant as soon as the relationship ended will not constitute the elements of the offence in terms of Article 134/2 of the Turkish Penal Code, the relevant article mentions the unlawful disclosure of the images, whereas in the event, when the defendant started to disclose the pictures, no illegality can be mentioned, what is intended to be protected in the law is the prevention of unlawful disclosure of private images or voices of persons, the pictures subject to the crime were disclosed in accordance with the law from the beginning until a certain stage, at the point where one of the parties of the picture,
that is, the complainant, withdraws his consent, the action will not turn into a crime, at this point, the defendant’s inaction and not removing the pictures will not constitute the elements of the imputed offence, with the opinion that the decision of our court is appropriate and the defendant was acquitted as follows… ” in the examination made by determining that the duty of examining the judgement on appeal belongs to our Chamber with the acceptance of the decision of resistance as compliance in action, since the last application of the local court is not a decision to resist, but a new judgement, due to the establishment of a judgement in accordance with Article 223/2-a of the Code of Criminal Procedure with new and different justifications:
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 participant’s other appellate objections are rejected, however;
In the case where the defendant, after publishing the photos of the victim kissing him on the cheek in one frame, hugging him in the others and posing side by side with both of them wearing their daily clothes, on his facebook account with the knowledge of the victim, continued to publish the photos in question despite the separation with the victim and the request to remove them by the victim;
Since the photographs showing the existence and extent of the relationship between the defendant and the victim were previously published on the social networking site named facebook in accordance with the consent of the victim, these photographs cannot be considered as images related to the victim’s private life and violating the confidentiality of her private life, the defendant’s act of continuing to publish the photographs of the victim, which are personal data of the victim, against the consent of the victim, is considered as a violation of Article 136/1 of the Turkish Penal Code. Without considering that a verdict of conviction should be given for the offence of illegally giving or obtaining data in violation of the law, acquitting the defendant in accordance with Article 223/2-a of the Code of Criminal Procedure on written grounds that are not legal and sufficient,
Since it is contrary to the law and the participant’s appellate objections are deemed appropriate in this respect, it was decided unanimously on 13.09.2017 that the judgement shall be reversed 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.
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