Elements of Defamation Offence
FAIL
In the text of the law, the phrase “the person who attacks the honour, honour and dignity of a person” is included. Accordingly, the perpetrator of this offence can be anyone. The same is the case for insulting the memory of a person under Article 130 of the TPC. In addition, since the term “anyone” is used, it is understood that the perpetrator can only be real persons. It is not possible for legal persons to be the perpetrator of this offence. The perpetrator of this offence can be a living person. In terms of publishing the insulting writings of a deceased person, the publishers will be responsible for this offence. There is no responsibility of the deceased person. In case of defamation through a will, the deceased person will not be the perpetrator, and the public official who opens and processes the will will not be responsible for fulfilling the provision of the law.
In the presence of an exemption such as legislative immunity or diplomatic immunity, the persons who commit the act may be the perpetrators of the offence, but cannot be prosecuted due to the exemption. Pursuant to Article 83 of the Constitution, “Members of the Grand National Assembly of Turkey shall not be held responsible for their votes and remarks in the work of the Assembly, for the opinions they put forward in the Assembly, …, for repeating and revealing them outside the Assembly.” Within the scope of legislative irresponsibility, MPs will never be held responsible for their words and behaviours during the parliamentary work that constitute defamation.
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In the event that defamation offences are committed through the press, Article 11 of the Press Law No. 5187 will be applicable. Accordingly, a distinction is made according to whether the publication in which the offence is committed is a periodical or a non-periodical publication.
In periodical publications, the perpetrator is the author in accordance with this law. In cases where the author is not known, or was not criminally competent at the time of publication, or could not be tried in Turkey due to his/her presence abroad, or where the punishment to be imposed does not affect the punishment that the author has been convicted with a final judgement for another offence, the responsible manager and the director in charge of the publication, such as the editor-in-chief, editor-in-chief, editor, press consultant, are the authorities to whom the responsible manager reports. However, if this work is published despite the objection of the responsible manager and the official to whom the responsible manager reports, the responsibility arising therefrom belongs to the publisher.
In the case of non-periodical publications, in cases where the author of the work is not known or is not criminally competent at the time of publication, or cannot be tried in Turkey due to his/her presence abroad, or where the punishment to be imposed does not affect the punishment that the author has been convicted with a final judgement for another offence, the responsible manager and the editor in charge, such as the editor-in-chief, editor-in-chief, editor, press advisor, is the publisher.
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Pursuant to Article 28 of the Law No. 2954 on Turkish Radio and Television, if an offence is committed through these broadcasts, regardless of whether it is live or tape recorded, the perpetrator of this offence is the TRT officials who write the text or detect the sound, actually control it, actually manage and control the broadcast. In accordance with the relevant articles of the same law, the responsibility of the announcer who only reads the given text is not in question. In other words, the announcer who reads the given text, declarations and speeches, political party propaganda in elections, published answers and corrections cannot be the perpetrator. The same is the case for insulting the memory of a person under Article 130 of the TPC. For example, as in the case of insulting a deceased person in a statement made on live broadcast, the announcer who reads it will not be responsible.
VICTIM
Article 125/1 of the TPC stipulates that the offence may be committed against “a person”. Accordingly, any person can be the victim of this offence. The victim of the offence of insult is the person insulted.
It is not necessary to clearly identify the deceased person. For example, if it can be understood who is meant by the nickname used by a deceased person while he was alive, the name given to him or the initials of his name, the offence will be committed when the number of people involved reaches a sufficient number.
In cases where the identity of the victim is not determined, the offence of insult does not occur. In order for the offence of insult to occur, the victim must be known or possible to be determined. In this case, since it is not clear whose honour, honour and dignity are harmed by public swearing, the crime of insult will not occur. Article 126 of the TPC, although it bears the title of proof of the allegation, is an enlightening provision in terms of the determinability of the victim. Pursuant to the aforementioned provision; “Even if the name of the victim is not explicitly stated in the commission of the offence of defamation, or even if the allegation is vague, if there is no doubt about its nature and that it is directed against the person of the victim, both the name is stated and the defamation is deemed to be explained.” In this case, for example; saying a person’s nickname, initials, or only his/her name or surname, or using the expression “known person” in a way that everyone can understand will be sufficient for the formation of this offence.
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If the words targeting a certain region but not a certain person are not of a nature to damage the honour and dignity of a person; the crime of insult does not occur. However, in this case, the possibility of committing one of the offences against peace may be considered. For example; if an expression such as “all the people living in that region have bird brains” is used, Article 216 of the TPC will be applied.
Children and the mentally ill may also be victims of this offence. Because these persons also have an external honour worth protecting. Those who are considered to have no honour in society due to their criminal background, social status and profession may also be victims of this crime. For example, calling a thief a thief, a swindler a swindler, a prostitute a prostitute will constitute the offence of insult.
Pursuant to Article 125/3 of the TPC, public officials may be victims of this offence due to their duties. However, if the offence is committed not because of their duties but because of their title, it will constitute the offence of ordinary insult pursuant to Article 125/1 of the TPC. For example, if a person who is annoyed with a police officer shouts “bastards”, the crime is committed against the person of the police officer, not because of his/her duty. Therefore, the offence of ordinary insult will have occurred.
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If this offence is committed against public officials working as a board (TBMM, Council of Ministers, election and ballot box committees, judicial boards, etc.), this offence will be committed against each member of the board.
If a community is insulted without directly targeting a professional group or social community; in the event that there is one or more than one real person who is the direct addressee of the crime in terms of the way the insult is committed, each of the persons constituting this community is the victim of this crime and the provisions of chain crime are applied. For example, this offence is constituted by saying “those who are from that profession are point by point” directed at one or more persons from that profession. However, this offence does not occur in cases where the victim cannot be identified, such as “those from that profession are deceitful”.
In insulting the memory of the person regulated in Article 130 of the TPC; the victim is the relatives of the deceased person. In addition, it does not matter the gender of the deceased person, whether he/she had the ability to perceive while he/she was alive or not. What is important in terms of this offence is that the memory of the deceased person is committed by contacting at least three people.
SUBJECT OF THE OFFENCE
The subject of this offence is the honour, dignity and reputation of persons. This offence is a danger offence. In this sense, it is not required for this offence that the subject of the offence has suffered a damage. Moreover, the danger related to the subject of the offence does not even have to appear concretely. Therefore, it is sufficient that the accusation or value judgement is capable of offending the honour, honour and dignity of the person. As a result, the offence is an abstract danger offence.
Pursuant to Article 130/1 of the TCC, the legal subject of the offence is the memory of a deceased person and naturally the respect of the relatives for this memory. In the case of taking the corpse and bones regulated in Article 130/2 of the TPC, the subject of the offence is the corpse and bones of the deceased in case of insulting acts about the corpse or bones.
A corpse can be defined as the body of a person who is stillborn or dies later. However, a foetus that has not yet taken human form is not considered a corpse. A cadaver whose organs have not disintegrated and whose identity can be determined is within the scope of the corpse. If its integrity is broken and disintegrated, that cadaver will now be considered within the scope of the parts of the corpse.
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If brain death has occurred after a person has entered a vegetative state, the act of insult against him/her will no longer constitute the offence of insult in accordance with Articles 125 et seq. of the TPC, but the offence regulated in Article 130. Because the victim of the act of insult in Article 125 of the TPC can only be a living person. The mummy will also benefit from this protection.
Removable parts such as prostheses, pacemakers, dentures added to the person before death cannot be the subject of this offence.
ACT
In this regulation, the distinction between insult and swearing offence adopted in the Turkish Penal Code numbered 765 has been abolished. Accordingly, the verbal element of the offence of insult consists of two optional acts, namely; imputing a concrete act or fact or swearing. The crime of defamation will occur if one of the optional acts that may offend the honour, dignity and reputation is committed. This offence is a crime of mere action. Therefore, it is not required that the honour, honour and dignity of the victim is offended, it is sufficient that the act has that quality.
1. Attribution of a Concrete Act or Fact
The first of the optional acts constituting the material element of the offence of defamation is that the perpetrator has attributed a concrete act or fact to the victim, the truth or falsity of which can be revealed and which is suitable for proof.
In order to be able to speak of the attribution of a concrete act or fact, the attribution directed to the victim must also contain complementary elements regarding the place, subject, time and manner of occurrence of the act or fact. For example, saying “he is a thief with a briefcase” about a lawyer is an abstract imputation (defamation); on the other hand, saying “he is the head of the wheel of corruption in the courthouse” about the same lawyer shows that it is a concrete fact imputation. To give another example; saying “you received money from such and such person on such and such date” is also a concrete imputation.
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The concept of attribution does not include events that will take place in the future. For example, if it is said “If that woman leaves her husband, her boss will take A home and they will commit adultery.”, the concrete fact does not constitute an attribution, but rather an act of swearing. Although the fact that the act or fact attributed is in accordance with the truth is not a condition for the occurrence of the offence of defamation as a rule; in certain cases, the institution of proof of the attribution regulated in Article 127 of the TPC may find an application area. In addition, at the point of conformity to the truth, the application of a reason of lawfulness within the scope of the exercise of the right to news and criticism may also be in question.
The offence of defamation is an abstract danger offence in terms of its subject matter, and the legal definition does not include a concrete change in the external world. As can be understood from the text of the article, in order for the act to be considered completed, the result intended by the perpetrator does not have to be realised. This offence has the characteristic of an instantaneous offence, i.e. it takes place as soon as it is said.
The accuracy of the act attributed is not effective in the formation of the offence. In addition, the person who conveys other known events will commit the crime of insult because the victim’s honour is once again stained and the event has caused the event to spread more.
2. Swearing
Blasphemy, which constitutes the other optional act of the crime of insult, is the uttering of words that do not contain a concrete act or fact, expressing an abstract value judgement, but which may offend the honour, honour and dignity of the person. The offence of insult also occurs in the case of making abstract epithets without connecting the person with any event. Words expressing a bad quality or habit, even if they are not associated with a concrete act or fact, still constitute the offence of insult. The offence of insult can be committed by writing, drawing, sign or an obscene hand gesture. For example, handing a person a bone and saying “catch it”, calling a dog the name of the victim, spitting on the victim’s face will constitute blasphemy. In the decisions of the 4th Criminal Chamber of the Court of Cassation, blasphemy is defined as “degrading value judgement”. As stated in the preamble of the article, if a person is called a “tramp”, “scoundrel”, “animal”, there is no imputation of a concrete act. Likewise, the offence of defamation also occurs when a person is abstractly referred to as “thief”, “briber”, “dishonest”, “prostitute”, etc. The offence of defamation is also committed by expressing the person’s physical defect or attributing a disease to the person. For example, calling a person “blind”, “cross-eyed”, “lame”, “hunchback”, “bald”, etc.; calling a person “psychopath”, “syphilitic” or “AIDS sufferer” commits the offence of insult.
It should be noted that the behaviour must be intended to humiliate the person. The offence of defamation also occurs when a certain political opinion is attributed to a person with the aim of humiliating him/her in the eyes of the society. For example, calling a person a “fascist”, “communist” or “apostate” constitutes an offence of insult. When determining whether the words spoken or the behaviour performed in reference to a person is degrading to that person, the prevailing customs and traditions in the society must be taken into consideration.
SPIRITUAL ELEMENT
Special intent is not required for the offence of insult, general intent is sufficient. If the acts done for the purpose of joking or mocking contain the objective elements of insult, then the offence will still occur. In the event that a situation with a factual value, a legal institution or a historical reality is put forward, the act of insult will not occur, for example, the expression “wife” in the question asked to a married man “what is the name of your wife?” while filling out a form does not constitute an insult; During an argument, the expressions such as “throw that wife out” towards the other woman will constitute the offence of insult because they are intended to humiliate and humiliate the interlocutor.
If the perpetrator knows that his words or actions are of a nature that may offend the honour and dignity, the fact that he has attributed a different meaning to the words or actions he used does not eliminate the criminal intent. However, if the perpetrator does not know that the words he uses or the actions he performs in a local place are of a nature that may offend the local honour and dignity; he benefits from his mistake in accordance with Article 30/4 of the TPC.
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The offence of insult can also be committed with probable intent. For example, if a person says insulting words “let him hear if he hears” while talking about his neighbour in the garden and the victim hears these words, the crime is committed with probable intent. The offence of insulting the memory of a person regulated in Article 130 of the TPC is a crime committed with general intent. Insulting the memory of a person knowing that a person is dead and has had contact with 3 people, taking the corpse or bones of the dead or committing insulting acts is sufficient to complete the offence. This offence can also be committed with probable intent. However, it cannot be committed with negligence since its negligent form is not regulated in the law.
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