For the offence of defamation, there are reasons of lawfulness that eliminate the element of illegality. These are the right to inform and criticise, which are frequently encountered in legal practice, and the right to immunity of claim and defence, which is examined in Article 128 of the TPC, as well as the reasons of lawfulness in the form of proof of the allegation regulated in Article 127 of the TPC, which is specific to the crime of defamation.
1. Immunity of Claim and Defence
Within the scope of the “freedom to seek rights” guaranteed by Article 36 of the Constitution, the immunity of claim and defence is regulated in Article 128 of the Turkish Penal Code as follows: “In the event that concrete allegations or negative evaluations are made about individuals within the scope of written or oral applications, claims and defences made before judicial or administrative authorities, no penalty shall be imposed. However, for this purpose, the allegations and evaluations must be based on real and concrete facts and must be related to the dispute.” Accordingly, written and verbal applications made to judicial or administrative authorities, as well as denunciations and complaints, fall within the scope of this ground of lawfulness.
The conditions for the application of the Article can be listed as follows. A written or oral application, claim or defence must be made before the judicial or administrative authorities. The application may be made in writing or verbally through a denunciation or complaint. In other words, it does not have to be in writing.
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In order for the allegations and negative evaluations made against persons to be in accordance with the law, they must be “based on real and concrete facts” and “related to the dispute”. For example, in a divorce case, the words “the defendant woman sleeps around with men” can be considered within the scope of claim and defence, while in the same case, calling a woman a “whore” due to the same incident cannot be included in this scope.
However, even if the allegations that are not related to the concrete dispute are true, the existence of the immunity of claim and defence cannot be mentioned.
The immunity of claim and defence is specific to the crime of defamation. For example, if the act of the perpetrator is in the nature of misconduct or threatening offence, he/she cannot benefit from this immunity.
2. Right to News and Criticism
There is no doubt that the right to inform and criticise undertaken by the father within the scope of the right of the public to receive information is of a public nature. In order to benefit from the reason of conformity with the law in the form of the right to inform the public during the transmission of an event to the public, it is necessary not to harm other constitutionally guaranteed rights, especially personal rights. In this context, it is up to the judge to determine whether an allegation is within the framework of political, scientific, literary criticism or whether it is of a nature that may offend honour and dignity.
Allegations of defamation committed through the press are an issue that must be treated very meticulously, otherwise the freedom of the press and freedom of expression will be harmed. Certain measures have been adopted to determine the limits of the right to inform and criticise; these are reality, topicality, public interest and public interest, and the intellectual connection between the subject and the expression. Failure to fulfil even one of these elements eliminates the right to inform and criticise and renders the act unlawful. To briefly examine these features;
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In order for a news item or criticism to be considered within the scope of freedom of the press and freedom of expression, it must first be true. News or comments that do not have the characteristic of reality and are completely fabricated cannot be included within the scope of criticism. The reality sought here is the apparent reality, and the person making the news does not have to investigate all the details and reach one hundred per cent truth. It is sufficient that he/she has made all possible researches and reached the conclusion that this matter is true. At the same time, the news must be up-to-date, and the use of this right cannot be mentioned in outdated and obsolete issues.
In the event that private information of persons other than the information required by the public interest is included, it cannot be said that the right to inform is exercised. In addition, there must be an intellectual connection between the news and the value judgements used. In the event that the news and the way it is given cause different connotations from each other, this right cannot be mentioned in case of going beyond the scope of reporting.
Care should be taken not to include defamatory expressions in the news report or commentary. In particular, the news article or commentary should not contain any words that are in any way blasphemous. Another issue to be considered here is the careful determination of the boundary between humour and insult. According to the Court of Cassation, humour is defined as “subtle mockery with the aim of entertaining, laughing and teasing someone’s behaviour without hurting them”. Accordingly, analogies and sarcasm made through humour may be heavy and shocking. However, in order for humour to be considered as a reason for compliance with the law, it must not contain hurtful and degrading value judgements and a measured expression must be used.
PROOF OF THE ACCUSATION
Proof of the allegation is a cause of lawfulness specific only to the offence of defamation. If the proof of the allegation is in question in cases where a concrete act is imputed, the right of proof is not recognised for those concerned. This allegation may be made against a public official due to his/her duty, or a criminal allegation may be made against any person. In the event that an allegation is made against those who are in public office and service solely in relation to the fulfilment of this duty and service, the person making the allegation has the right to prove the accuracy of the allegation. In order to prove the veracity of an allegation made against a person other than a public official, one of the following two conditions must be fulfilled.
The first is that there is a public interest in proving the truth of the allegation. Secondly, the complainant, i.e. the person insulted, must consent to the proof. Accordingly, it is possible to examine the conditions for the application of Article 127 of the TPC, which regulates the proof of the allegation, under three headings.
The Requirement of Public Interest in Understanding Whether the Accused Act is True or Not
Firstly, it should be evaluated whether the act charged is an offence or not, and then the public interest should be examined. Whether there is a public interest in an act that is an offence will not be evaluated separately. Upon the request of the perpetrator of the defamation offence for proof, the court will appreciate whether there is a public interest in understanding the truth of the act. If the allegation concerns the general public, the social status of the victim and the duty he/she undertakes in the society require that such an allegation should not remain ambiguous, there is a public interest in proof. For this reason, it is accepted that there is always public interest in the allegations made against a public official due to his/her duty.
The Offence of the Act Subject to the Accusation and the Conviction of the Victim
If there is a final judgement of conviction against the person who has been insulted by an accusation of a crime, then the perpetrator of the offence of insult shall not be punished. However, it should be noted here that the conviction decision must be finalised before the act of insult.
The determination of whether the offence subject to the accusation has actually been committed will only be in question in the criminal case that has been opened or will be opened in the relevant court for this reason. In the file where the defamation case is heard, the proof judgement will not be made and it will be decided to wait for the outcome of the lawsuit filed. In other words, the proof of the allegation will be a matter of waiting.
Consent of the Complainant
In the presence of the complainant’s consent, it is accepted that the perpetrator has the right of proof without the need to investigate whether there is a public interest. The complainant’s consent to the proof of the allegation means that the victim against whom the offence of defamation has been committed accepts the court’s discussion of the truth or falsity of the alleged act.
Once the complainant has consented to the proof, he/she may no longer withdraw his/her consent. In order to prove the test, the fact that the imputed act is real must be determined precisely and completely in such a way as to leave no room for uneasy doubt. If there is any doubt, it will not be considered as imputed.
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The Court of Cassation has recently rendered a decision explaining the whole procedure regarding the proof of the accusation. In the case mentioned in the decision, the defendant claims that the victim judge said “fuck off” in the courtroom, requests that the witnesses who were present in the courtroom at that moment be heard as witnesses in order to prove that the judge said this way, and that the victim complained to the judge and that the result of this complaint should be awaited, but despite this, the court sentenced you for the crime of insulting a public official without any research. The Court of Cassation did not find it appropriate to sentence the defendant without giving the defendant the right of proof and without evaluating and discussing the contradictions in the witness statements and gave a decision of reversal.
The action of the perpetrator must be unlawful, especially in the act of taking the corpse or bones, if the perpetrator is doing his duty, for example, the court judge removing the corpse with conquest-i kabir and sending it to the Forensic Medicine Institution, in cases of the use of the duty and authority arising from the laws numbered 2238 and numbered 1593, the act will not constitute a crime since the act is in accordance with the law.
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