Penalty for violation of confidentiality of communications

1- THE CRIME OF VIOLATING THE CONFIDENTIALITY OF COMMUNICATIONS BETWEEN PERSONS (TCK 132/1.)

The basic form of the crime of violating the confidentiality of communications is included in the first sentence of the first paragraph of the article, and a qualified version is included in the second sentence. According to the first paragraph, for a crime to occur, the confidentiality of communication between individuals must be violated. Violation of confidentiality means that the matters subject to communication, that is, the content of the communication, are learned by third parties without the consent of the communicating parties. Here, the perpetrators of the crime are third parties who are not parties to the communication. Communicating parties do not have the ability to be perpetrators. The Supreme Court decision we shared above under the title of perpetrator and victim is a precedent for this situation.

There is no enumeration or limitation in terms of the form of the violation. For this reason, it should be said that the crime is a free-moving type of crime. According to the decision of the Supreme Court of Appeals CGK No. 2020/442 K.; Any knowing and intentional intervention by persons who are not parties to the communication regarding the confidentiality of the communication is considered a violation of the confidentiality of the communication. However, for this crime to occur, the violation must be committed unlawfully. Since the forms of privacy violation are not specified in the crime definition, violating the confidentiality of communication is a free action crime. Since the violation of confidentiality is sufficient for a crime to occur and there is no requirement for harm to occur, this crime has the characteristics of a danger crime.

According to the justification of the article; Violating the confidentiality of communications simply by listening or reading constitutes the basic form of this crime. This means that only the act of listening or reading constitutes a crime. However, according to the opinions in the doctrine that we also agree with, it would be wrong to reduce the formation of the crime only to the acts of reading or listening. Because technological developments allow video calls and these opportunities are being used to the fullest. Reducing the crime to two actions will lead to impunity for monitoring video calls. Moreover, these examples can be multiplied. Additionally, as is known, justification sections are not considered to be included in the text of the article. Therefore, it would be wrong to consider the comment in the justification as a ruling.

In cases such as reading letters and messages between people, listening to phones, watching images, etc., this form of the crime will come to the fore and the perpetrator will be punished according to Paragraph 1. The following expressions were used in the decision No. 2019/7462 K. of the 12th Criminal Chamber of the Supreme Court of Appeals:

"The information, thoughts, feelings and attitudes shared by two or more specific or identifiable people, acting with a justified belief and will that others should not know, and taking care to ensure confidentiality, through convenient means (internet, telephone, wireless, fax, letter, telegram, paper, etc.) and common symbols (words, writings, signs, etc.); whether related to private life or not, by another person or persons, by making a special effort, directly or indirectly (without opening the envelope, to light). "As in the kept letter), the act of learning by reading or listening will be evaluated within the scope of the crime of violating the confidentiality of communication in the sentence 132/1-1 of the Turkish Penal Code." Finally, we feel the need to mention one more issue. In order for a crime to occur, communication contents must be accessed with a special effort. Communication contents that can be accessed through ordinary means cannot be considered as a crime. The opinion of the Supreme Court is in this direction: "In order to constitute the crime of violating the confidentiality of communications defined in the 132/1-1 sentence of the Turkish Penal Code No. 5237, the information shared by two or more specific or identifiable persons through convenient means (internet, telephone, wireless, fax, letter, telegram, paper, etc.) and common symbols (word, writing, sign, etc.) by acting with a justified belief and will that others should not know, taking care to ensure confidentiality, Their thoughts, feelings and attitudes, whether related to private life or not, must be learned by another person or persons, by making a special effort, directly or indirectly (such as in a letter held up to the light without opening the envelope), by reading or listening to it. Otherwise, in cases where the communication is not confidential or there are no necessary precautions, the elements of the crime are considered not to have occurred.

According to the file content; The defendant, who received an amateur radio license on 07.06.2004 and did not have his radio usage license renewed within the period, was found to have set the frequency of his radio, which was seized from his waist by the police who were suspicious of his situation, while he was drinking alcohol on the day of the incident, to the frequency used by the police for public order. In accordance with the article, in the crime whose investigation and prosecution depends on the complaint, there is no person or persons complaining about being victimized as a result of the wiretapping made by the defendant and there is no communication content subject to the detected violation, and it is understood that there is no determination made as to whether it is possible to access the frequency in question without a password and effortlessly in order to determine whether care is taken to ensure confidentiality. Giving a written conviction against the defendant for the crime of violating the confidentiality of communications, without considering that it should be evaluated within the scope of Article 12. CD. K. 2012/14787

2- THE CRIME OF UNLAWFULLY DISCLOSING THE CONTENT OF COMMUNICATIONS BETWEEN PERSONS (TCK 132/2)

132. In the second paragraph of the article, unlawful disclosure of the contents of communications between individuals is defined as a separate crime. As we stated above, the material subject of this crime is not the communication itself, but its content.

According to the justification of the article; The contents of the communication may have been learned in accordance with the law or by committing the crime defined in the first paragraph. The crime defined in the second paragraph occurs by disclosing and disseminating the contents of communications, that is, by ensuring that they are learned by unauthorized persons.

If you pay attention, what is required here is that the disclosure be made unlawfully. Therefore, disclosures made in accordance with the law cannot be considered a crime. According to the example given in the justification; If the records of telephone conversations between individuals are given to the prosecutor's office or the court, and are listened to or read openly at the hearing, the crime in question will not occur. On the other hand, this crime will occur if the contents of conversations between individuals are published, for example, on television or in newspapers, even if they are recorded in accordance with the law while they are still in the investigation phase.

The statements of the Supreme Court CGK on the subject are as follows:

"In the second paragraph of the article, unlawful disclosure of the contents of communication between individuals is regulated as a separate crime. The word "disclosure" in the text of the article is defined in the Turkish Dictionary of the Turkish Language Association as "revealing or disseminating a secret thing". Disclosing the content of the communication means transferring the content of the communication to a third person, giving information to the third person about the content of the communication. It is not necessary to disclose the content of the communication publicly. In this respect, the content of the communication is not necessary to disclose the content of the communication to a third person. It is not necessary for the disclosure to be made in a place where everyone can hear and see it. Disclosing the content of the communication to a person also means disclosure. This crime occurs by disclosing and disseminating the content of the communication, in other words, whether the method of learning the content of the communication is legal or unlawful. In case the content of the communication is disclosed or disseminated in any way contrary to the law, the disclosure of the content of the communication between persons is considered unlawful. It must be contrary.

The crime regulated in this article is a crime committed with general intent and no motive is required for the formation of the crime."

In some cases, especially when it is not possible to obtain evidence in favor of individuals otherwise, it may be necessary to mention that there is no element of unlawfulness in recording the contents of communications and submitting these records to the court. As a matter of fact, in one of its decisions, the Supreme Court accepted that recording the contents of the spouse's communication and submitting it to the court in a divorce case is a reason for compliance with the law. The relevant parts of this decision are as follows:

".. However, in sudden situations where the person does not have the opportunity to obtain evidence again and does not have the opportunity to apply to the competent authorities, for example, in case of a crime being committed against him/her (such as sexual assault, insult, threat, slander or blackmail), or in order to prevent an unfair attack directed at him or his family unit, harming his dignity, in order to prevent the loss of evidence that is likely to be lost and to secure it by presenting it to the competent authorities, without the knowledge and consent of the party who committed the attack, While it is not possible to accept that the actions of listening to, monitoring or recording speech and communication contents or sounds and images related to private life are against the law, in fact, in these cases, it cannot be said that the person acts with the awareness that he is acting against the law;

According to the defense and file content that has not been proven otherwise; Suspicious of the fidelity of the participant, who was his wife, and thinking that he was being deceived, the defendant connected the monitor multiplexer and VGA monitor cable he had provided to the computer used by the participant, and after establishing a connection with the computer that the participant was using, from another computer monitor that he placed in his own empty flat on the upper floor, he secretly followed the conversations made by the participant over the internet. On 21.10.2006, he noticed that the participant was making a video call via MSN, and started monitoring the conversation made by the participant via the internet, and at one point, the participant was male. He called his brother and then continued to watch the interview alone. He saw that the participant and a male friend of the participant he knew from work were talking. During the conversation, he saw the participant undressing, making sexual remarks to the other person in a naked state and engaging in a relationship called "virtual sex". The next morning, after leaving the voice recording function of his mobile phone on and secretly placing it in the room, he asked the participant questions about the previous night and made accusations, and recorded the participant's answers regarding the subject and the conversations between them. In the incident where he allegedly talked about the video call he had and presented the content of the conversation he recorded on his mobile phone as evidence to the court in the divorce case he filed against the participant; As a result of the trial, it was accepted and appreciated by the court, citing the reasons that the crimes charged did not occur in terms of their legal elements due to the defendant's lack of intent.." K. 2012/14791

3- THE CRIME OF PUBLICLY DISCLOSING THE CONTENT OF COMMUNICATIONS MADE WITH HIM WITHOUT THE CONSENT OF THE OTHER PARTY (TCK 132/3)

The third paragraph of the article can be processed by disclosure, just like the second paragraph. However, a distinction is made between the two paragraphs in terms of the perpetrator of the crime. Here, the perpetrator of the crime is one of the parties to the communication. Yet another distinction is made in terms of publicity.

For this crime to occur, the disclosure must be made publicly. In cases where the element of publicity is not met, no punishment will be imposed for this crime. According to the justification of the article; In this regard, for example, if a person allows someone else to read the letter sent to him without the knowledge and consent of the sender, this crime will not occur. On the other hand, if the letter is read publicly without the sender's knowledge and consent, hung somewhere to ensure that it is read by others, or published through the press and publications, the crime in question will occur.

According to the decision of the 12th Criminal Chamber of the Supreme Court of Appeals No. 2019/7462 K., in order for the crime to occur; Disclosure of the contents of the communication by the other person who is the addressee of the communication, in a public environment that is not specific and can be perceived by more than one person, without the consent of the person or persons concerned, that is; to spread, to reveal, to advertise, to announce, to announce to the public, in short; It must be submitted to the information of the person or persons who are not authorized to learn its content.

Repealed article 132/4 of the Turkish Penal Code. The provision regulated the commission of the crime through the press. If the crime is committed through the press, there will be an element of publicity.

It should not be forgotten that in order for publicity to occur, the contents of the communication must be disclosed to more than one person. However, in the decision of the Supreme Court, which we will share below, a provision was made to punish the perpetrator without looking for the element of publicity. We are of the opinion that the elements of the crime are not formed by not agreeing with this decision:

"In the incident that the defendant disclosed by recording a private phone conversation he had with Selvi, with whom he had a romantic relationship for about 5 years, and sending it to Murat, the husband of Selvi, who participated without consent; because the defendant disclosed the content of the communication to which he was a party without the consent of the other party, without considering that the action constituted the crime of violating the confidentiality of the communication in accordance with Article 132/3 of the Turkish Penal Code, the same Law, which has no application in the incident, was mistaken in characterizing the crime. Establishment of judgment in accordance with Article 134/1," Y12. CD. 2014/18859 K.

Again, the element of unlawfulness must be taken into consideration here too. Our explanations above will be equally valid here as well. According to an exemplary Supreme Court decision on the subject:

"In the incident that took place when the defendant recorded the phone call without consent and submitted it as evidence in the divorce case due to the complainant's deliberate injuring and threatening action towards him during his phone call with the complainant, the defendant's actions such as recording the content of the communication and submitting the CD containing this recording as evidence to the ongoing case file were intended to prove his claim in the divorce case, so it was understood that he did not act with the awareness that he was acting against the law, and there was no misjudgment in acquitting the defendant." Y12. CD. K. 2015/3

CASES THAT INCREASE THE PUNISHMENT FOR VIOLATION OF THE CONFIDENTIALITY OF COMMUNICATIONS

There are some qualified forms of crime regulated by law. Some of these cases are covered in Article 132, and some are covered in Article 137, which is a general provision for crimes of violation of privacy. Accordingly, the punishment to be given to the perpetrator is increased in the following cases:

• Committing the crime by recording the contents of communication,
• The crime is committed by a public official by abusing the authority granted by his/her position,
• Committing the crime by taking advantage of the convenience provided by a certain profession or art.

If the crime is committed by a public official, the crime of abuse of office will actually come to the fore. However, the mere fact that a public official has committed this crime does not require an increase in the penalty. The public official must have committed the crime by abusing the authority of his office. Therefore, a qualified situation will not occur in crimes committed unrelated to duty.

Again, if the crime is committed by taking advantage of the convenience provided by a certain profession or art, the penalty to be given to the perpetrator is increased. For this, there must be a causal link between the commission of the crime and the person's profession and art, and this link must facilitate the commission of the crime in TCK Article 132.

COMMITTING THE CRIME OF VIOLATION OF THE CONFIDENTIALITY OF COMMUNICATIONS BY RECORDING THE CONTENTS OF COMMUNICATIONS (TCK 132/1-2nd sentence)

As we stated above, if the basic form of the crime is committed by recording the contents of the communication, the penalty to be given to the perpetrator will be increased.

Here, the perpetrator of the crime is the third person or persons who are not a party to the communication. The communicating parties are not the perpetrators of the crime. In crimes where the perpetrator is a party to the communication, the penalty cannot be increased due to this situation. In such cases, if the conditions exist, provision 132/3 shall apply. In the following Supreme Court decision, comprehensive evaluations were made regarding the difference between the two crimes. Accordingly:

"Due to the fact that the defendant did not publicly disclose the content of the communication to which he was a party, that is, in a way that could be perceived by an indefinite number of people, the legal elements of the crime of violating the confidentiality of communication defined in the 3rd paragraph of Article 132 of the TCK did not occur in the concrete case, and therefore the defendant's action, which consisted of disclosing the conversations within the scope of the private life of the victim to the other defendant without recording them, resulted in the images or sounds in the 1st sentence of the 2nd paragraph of Article 134 of the TCK." Considering that the action of the other defendant, who listened and recorded the telephone conversation between the victim and the defendant without the consent of the victim and who was described in the indictment as the crime of listening to and recording the conversations between the persons in Article 133/1 and paragraph 1 of the Turkish Penal Code, constitutes the crime of violating the privacy of private life by disclosure, constitutes the crime of violating the confidentiality of communication defined in the 1st and 2nd sentences of the 1st paragraph of Article 132 of the TCK. While it is necessary to establish convictions for the crimes of violating the privacy of private life by disclosure, and violating the confidentiality of communications against the other defendant, without taking into account that the defendants acted in a prepared and planned manner, in order to obtain new evidence against the victim, not to ensure the preservation of existing evidence that is likely to be lost, even though there was no sudden crime committed against them by the victim (such as sexual assault, insult, threat, slander or blackmail), and without having the voice recording subject to the complaint decoded, it was incompletely examined and left in the file. "It is erroneous to decide to acquit the defendants based on insufficient justifications that do not comply with the current state of evidence." Y12. CD. K. 2020/2708

It is not possible to limit the recording method. This action can be performed in many different ways. For example, situations such as recording phone calls between two people, copying images, copying written texts, taking screenshots of social media correspondence increase the penalty. The justification states: "For example, if telephone conversations are recorded with a voice recorder, this qualified form of the crime occurs." It has been said.

CONSENT IN THE CRIME OF VIOLATION OF CONFIDENTIALITY OF COMMUNICATIONS

For a crime to occur, the confidentiality of communications must be violated unlawfully. The element of unlawfulness is also included in the article texts. We have included these explanations for each crime in its own title. In terms of this crime, the consent of the person concerned is a reason for compliance with the law. According to the Supreme Court, giving the password of a person's social media accounts does not mean that the person consents to the reading of the content of the communication. The following expressions were used in the relevant sections of the decision:

"Even if it is accepted that the participant somehow gave the password of his Facebook account to the participant, this situation cannot be interpreted as the participant's consent to access the Facebook message contents at all times, and there is no reason for legality in the concrete case since the participant and his mother did not jointly consent to the defendant being aware of the criminal message contents," YCGK 2020/442 K.

PUNISHMENT, CONCILIATION AND COMPLAINT PERIOD FOR THE CRIME OF CONFIDENTIALITY OF COMMUNICATIONS

• TCK 132/1. According to the article; Anyone who violates the confidentiality of communication between individuals is punished with "imprisonment from one to three years". (TCK 132/1)
• If the basic form of the crime is committed by recording the contents of the communication, "the penalty to be imposed is increased by one".
• Anyone who unlawfully discloses the contents of communication between individuals is punished with "imprisonment from two to five years". (TCK 132/2)
• Any person who publicly discloses the content of communications made with him/her "unlawfully" without the consent of the other party is punished with "imprisonment from one to three years".
• The same penalty is imposed if this disclosed data is published through the press and publications. (TCK 132/3)

Your crime;

• By abusing the authority granted by a public official,
• In case it is committed by taking advantage of the convenience provided by a certain profession or art, the penalty to be imposed is increased by half. (TCK 137)

Follow-up of all paragraphs of the crime in TCK Article 132 depends on the complaint. The complaint period is 6 months from the date of learning of the perpetrator and the act.

Conciliation procedure is applied for the crime of violating the confidentiality of communication.

The crime of violating the confidentiality of communications is not a type of crime that can be attempted.

It should also be noted that intent constitutes the moral element of the crime. The perpetrator's intention must be to learn the contents of the communication. This crime can also be committed with possible intent, but it is not possible to commit it through negligence.

The trial of the crime is carried out by the Criminal Courts of First Instance.