Crime of violation of private life

Article 20 of the 1982 Constitution defines privacy as "Everyone has the right to demand respect for their private and family life. The privacy of private and family life cannot be violated." He regulated it with his expressions. In order to protect the right stated in the Constitution, the crime of violating the privacy of private life has been regulated under Article 134 of the Turkish Penal Code under the title of crimes against persons.

According to Article 134 of the Turkish Penal Code, the crime of privacy is committed by violating people's private lives. The legal subject of the crime consists of all activities that fall within the sphere of private life. Based on this, it will first be necessary to explain the scope of the concept of private life. TDK concept of "private life"; It is defined as "a person's unique lifestyle, lifestyle, attitudes and behavior that concern him/her". As can be understood from the definition, the concept of private life has a very wide scope. In simple words, the part of a person's life that he does not want to be learned by any outside person is considered private life. The 12th Criminal Chamber of the Supreme Court of Appeals, in a decision dated 2019, stated the scope of private life; "Private life does not only consist of a person's life and privacy behind closed doors, within four walls, which is not shared with others, but also includes all life events and information that are completely personal to the person, which not everyone knows or should not know, and can be disclosed to other people when desired. When determining whether an event or information falls within the scope of the concept of private life, not only the characteristics of the physical environment in which the person is located should be taken into consideration, but also the person's position in society, profession, duty, whether he is known by the public, his outwardly reflected behaviors, consent and predictions, social "Criteria such as relationships and the degree of intervention should also be taken into consideration."

Private life constitutes the widest area of ​​freedom of individuals. For this reason, any intervention in private life will also be considered as an intervention in the sphere of freedom. As a matter of fact, Article 8 of the ECHR protects the privacy of private life as follows: "Everyone has the right to respect for his private and family life, home and correspondence. Interference by a public authority in the exercise of these rights may only be made in the interests of national security, public safety, the economic well-being of the country, the protection of peace and order, the prevention of crime, the protection of health and morals, or the protection of the rights and freedoms of others, to the extent necessary in a democratic society and provided that it is prescribed by law" and counts this right among the fundamental human rights. Again, interference with private life may only be possible in cases specified by law. In this context, as required by law, people may be searched or their phones tapped. However, the implementation of these measures regulated in the CMK is subject to strict conditions. These measures are taken in accordance with the procedure specified in the law and private life data can only be used in accordance with the law.

The concept of private life includes issues such as information and records regarding the identity of the individual, behaviors regarding sexual life, regulations regarding the physical and mental integrity of the person, private places such as home and vehicle, telephone conversations, mailings, name, photograph, reputation and honor, lifestyle and prevention of misrepresentation to the public.

HOW IS THE CRIME OF VIOLATION OF PRIVATE LIFE COMMITTED?

As we stated above, the legal benefit protected by the crime regulated in Article 134 of the Turkish Penal Code No. 5237; is the right to privacy and protection of private life. Everyone has the right to keep their private life confidential and to request protection due to any interference in their private life. By committing a crime, people's privacy is violated. For a crime to occur, the violation must be an unlawful violation. As we will state below, a crime will not occur if there are reasons for compliance with the law.

The crime of violation of privacy can be committed with two separate acts. The law defines these acts; He stated that it is a violation of the privacy of people's private lives and the disclosure of images and sounds related to people's private lives.

1- Violation of Privacy

The act that constitutes the crime defined in the first paragraph of Article 134 of the Turkish Penal Code is the violation of the privacy of individuals' private lives. In the justification of the article, this situation is stated as follows: "In the text of the first paragraph of the article, violation of the privacy of private life is defined as a crime. Thus, entering into the secret living space or detecting and recording a private life event that cannot be seen by others in any other way is punishable." It is expressed as follows.

What should be understood by private life is stated above. However, although some acts are related to the violation of private life, they are regulated in other articles of the Turkish Penal Code and are considered separate crimes. For example, violating the confidentiality of communications between individuals is punishable according to Article 133 of the law. Again, in Articles 132-133-135-136 and 138 of the Law, acts related to the violation of privacy are regulated as separate crimes. In this context, in order to be able to talk about the crime in Article 134 of the Turkish Penal Code, one of the actions other than Articles 132-133-135-136 and 138 must occur.

According to the decision numbered 2019/8633 K. of the 12th Civil Chamber of the Supreme Court of Appeals, "Private life does not only consist of the person's life and privacy away from sight, behind closed doors, between four walls, which he does not share with others, but also includes all of the life events and information that are completely private to the person, which not everyone knows or should not know, and can be disclosed to other people when desired. Therefore, being in a public area means that every image or sound in this area is Even when one is in a public place, the principle of "being unnoticeable in the crowd, unrecognizable, unknowable" applies, and the information obtained as a result of constant control and surveillance in order to determine what the person in the public area does during the day, the places he goes, who he meets, why, how, where and when, or when he enters the private life area. "Activities that are not suspicious are included in the concept of private life; however, events and information that are not continuous and are not included in the private life cannot be evaluated within this scope. As a result, when determining whether an event or information falls within the scope of private life, criteria such as the person's position in society, his profession, his duty, whether he is known by the public, his outwardly reflected behavior, his consent and predictions, the characteristics of his physical environment, his social relations, and the degree of intervention should be taken into consideration."

The crime of violating the privacy of private life is a free-action crime type. It does not matter how confidentiality is violated in terms of the basic form of the crime. Any behavior that involves interference with privacy is considered a crime. Violating confidentiality by recording images or sounds will constitute the qualified crime regulated in the second sentence of the same paragraph.

2- Crime of Disclosing Images and Sounds Regarding Private Life

134. The second of the acts defined as a crime in the article is the unlawful disclosure of images or sounds related to a person's private life. According to the justification of Article 134, "In the second paragraph of the article, the unlawful disclosure of images or sounds related to a person's private life is defined as a separate crime. These images or sounds may have been recorded lawfully within the scope of the investigation, for example, or they may have been obtained by committing the crime defined in the first paragraph. The crime defined in the second paragraph occurs by disclosing and disseminating these audio or video recordings obtained, that is, ensuring that they are learned by unauthorized persons. This disclosure must be unlawful. In this regard, if the records related to private life are submitted to the prosecutor's office or the court, shown and heard at the hearing, the crime in question will not occur. The disclosure through the press and publication is accepted as a qualified element of the crime in question.

According to the Turkish Language Association, the word disclosure; It is defined as "revealing or disseminating something secret". Therefore, in order for the crime regulated in the second paragraph to occur, only images or sounds must be disclosed, not every aspect of private life. As stated in a decision of the 12th Civil Chamber of the Supreme Court of Appeals dated 2019, "These images or sounds may have been recorded in accordance with the law, or they may have been obtained by committing the crime defined in the first paragraph. Disclosing these records regarding private life knowingly, willingly and without the knowledge and consent of the person concerned, even if they were obtained negligently or completely lawfully, and presenting them to the information of the person or persons who are not authorized to learn their content in this context, will constitute the crime regulated in the second paragraph of the article. For the acceptance of the disclosure, the image must be disclosed." or the person to whom the voice relates must be understood, at least understandable, or disclosed. In order for the crime in this paragraph to occur, the disclosure must be unlawful."

The concept of private life varies from person to person. In evaluating the concept, criteria such as the victim's personality, social life and political identity are taken into consideration. In this respect, the concept of private life of celebrities is considered more limited than other people. But that doesn't mean that celebrities don't have a private life. A narrower interpretation method is applied when assessing the violation of the private life of public figures. As a matter of fact, in the decision numbered 2015/510 K. of the General Criminal Assembly of the Supreme Court of Appeals on the subject, "... After the investigation initiated by the Chief Public Prosecutor's Office against the participant, who was the president of the chamber, after some of the members of Grocery Stores, Dealers and Dried Nuts ... complained about corruption in the chamber management, was reflected to the public, the photograph of the defendant, a member of the board of directors, taken with his consent, while the participant was making a scrub for a lady in the bathhouse of the hotel where the participant went for a training meeting covered by the chamber budget, was taken by another defendant, a member of the board of directors... In the incident where the news was given to the defendant ..., who was a columnist on the internet news site named "konyatanitim.com", without the consent of the participant, and the defendant ... used the photograph in question while reporting the allegations of corruption and the seminar covered by the chamber budget, and this news was published together with the photograph on the website owned and edited by the defendant ..., and subsequently in the national press and on various websites; "It is necessary to accept that the legal elements of the crime of violating the privacy of private life imposed on the defendant are not met if the news is of public interest due to the position of the participant who has allegations of corruption regarding the chamber he is the president of and the nature of the service he carries out, the public has an interest in learning the news, the way the news is given is compatible with the news, the expressions used and the photograph published have an intellectual connection with the event subject to the news." There is a decision as follows.

Violating the privacy of private life and disclosing voice and data regarding people's private life are different crimes. As a matter of fact, in a decision dated 2016 of the 14th Criminal Chamber of the Supreme Court of Appeals, this situation was stated as follows: "In the face of understanding that the defendant's recording of sexual conversations with the victim and the images of the victim without her consent and giving them to the complainant was of a nature to violate the private life of the victim, the defendant's action was both a violation of the privacy of private life by recording images or sounds regulated in Article 134/1 of the Turkish Penal Code and Article 2 of the same article. "It is against the law to make a written judgment by making a mistake about the nature of the crime without considering that it constitutes the crime of violating the privacy of private life by disclosing the images or sounds regulated in this paragraph and that the legal status of the defendant must be determined and appreciated accordingly." He expressed it as follows.

The crime of privacy (disclosure) committed via the internet or social media is evaluated within this scope (TCK 134/2).

QUALIFIED CONDITIONS OF THE CRIME OF VIOLATION OF PRIVATE LIFE

1- The crime of violating the privacy of private life;

a) By a public officer and by abusing the authority given by his/her position,

b) If 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.

2- If privacy is violated by recording images or sounds, the penalty will be increased by one.

3- Anyone who unlawfully discloses images or sounds related to people's private lives will be sentenced to imprisonment from two to five years. The same penalty is imposed if this disclosed data is published through the press and publications.

PUNISHMENT FOR VIOLATION OF PRIVATE LIFE

Article 134 of the Turkish Penal Code regulates the punishment of the crime of privacy as follows.

1- Anyone who violates the privacy of people's private lives is punished with imprisonment from one to three years.

2- If privacy is violated by recording images or sounds, the penalty will be increased by one.

3- Anyone who unlawfully discloses images or sounds related to people's private lives will be sentenced to imprisonment from two to five years.

According to Article 137 of the Law;

The crime of violating the privacy of private life;

a) By a public officer and by abusing the authority given by his/her position,

b) By benefiting from the convenience provided by a certain profession and art,

If committed, the penalty will be increased by half.

REASONS FOR COMPLIANCE WITH THE LAW IN THE CRIME OF VIOLATION OF PRIVATE PRIVACY

As we mentioned above, in some cases, personal data regarding a person's private life can be obtained and used. However, a legal regulation is needed to obtain and use this data. If the privacy of a person's private life is violated for a reason arising from the law, a crime will not occur. Examples of these situations include applying search protection measure about the person within the scope of the CMK, and eavesdropping on communications.

The second reason for compliance with the law is the person's consent. The law makes the prosecution of the crime subject to complaint. Therefore, in the violation of privacy, the consent of the person exposed to the violation will prevent the crime from occurring. In order for consent to be a reason for compliance with the law, it must be present before the act is committed and at the latest at the time it is committed. As a matter of fact, in a decision of the 12th Criminal Chamber of the Supreme Court of Appeals dated 2019, "The case concerns the crimes of insult and violation of the right to privacy. The statement of the witness stated by the complainant in the complaint petition should be taken, and a decision should be made within the framework of the appropriate result that will emerge, by investigating whether there is a written document indicating the permission received by the defendant from the complainant for the publication of what is written about the complainant and the picture of the complainant in the relevant book." It is stated as follows.

The last reason for legality within the scope of the crime is the exercise of the right. Freedom of the press is evaluated within the scope of the exercise of the right. An explanation regarding the subject will be made under the following heading.

PRIVATE LIFE AND VIOLATION THROUGH THE MEDIA

According to Article 28 of the Constitution; "The press is free and cannot be censored. Establishing a printing house cannot be conditioned on obtaining permission and paying a financial guarantee." Acts of violation committed within the framework of journalistic activities are considered within the scope of exercising the right in accordance with Article 26 of the Turkish Penal Code and do not constitute a crime. However, in order to be able to talk about journalistic activity, the conditions we will specify below are required. Accordingly;

1- The news must be real and up-to-date.

2- There must be public interest in giving the news.

3- There must be a connection between the news and the event.

Violation of privacy will come to the fore in journalistic activities that do not meet the above conditions.

"The freedom of the press, which is based on the 10th article of the European Convention on Human Rights and the 28th et.al. articles of the Constitution and regulated in the 3rd article of the Press Law No. 5187, and in this context, the right to obtain information, disseminate, criticize, interpret and produce works, is a reason for compliance with the law within the scope of the regulation "No one who uses his rights will be punished" in the first paragraph of the 26th article of the Turkish Penal Code. However, the news In order for this right, which includes accessing, interpreting and criticizing the news and delivering the news to the public, to be accepted as a reason for compliance with the law, the news must be real and up-to-date, the news must concern the public, that is, the public must have an interest in learning the news, and the news and the way it is delivered must be compatible. Supreme Court of Appeals Criminal General Assembly 2015/510 K.

As we mentioned above, in order for an action carried out within the framework of journalism and press activities to be considered a crime, there must be a number of criteria and, most importantly, freedom of the press must be exceeded. The following current Constitutional Court decision also touched upon these criteria in terms of press freedom and personal rights. In this respect, the relevant parts of the decision will be useful for our subject of examination. Relevant parts of the decision are as follows:

"It is clear that awarding compensation against the applicant due to the news broadcast on the applicant's television channel is an intervention against the applicant's freedoms of expression and press. The said intervention will constitute a violation of Article 26 of the Constitution, unless the conditions specified in Article 13 of the Constitution are met. The relevant part of Article 13 of the Constitution is as follows:

"Fundamental rights and freedoms... can only be limited by law and based on the reasons specified in the relevant articles of the Constitution. "These restrictions cannot be contrary to the requirements of the democratic social order and the principle of proportionality."

It has been evaluated that Article 58 of the Turkish Code of Obligations No. 6098 dated 11/1/2011, which is the basis for the intervention against freedom of expression and press, meets the legality criterion. It was concluded that the interference was part of measures aimed at protecting the reputation or rights of others and pursued a legitimate aim. At this point, the intervention must be examined in terms of its compliance with the requirements of the democratic social order.

In order for an intervention to the freedoms of expression and press protected in Articles 26 and 28 of the Constitution to be considered compatible with the requirements of the democratic social order, it must meet a social need and be a last resort. As a matter of fact, an intervention that does not meet these conditions cannot be considered to be in compliance with the requirements of the democratic social order. In similar cases related to the incident in question, it is vital that the courts maintain a fair balance between the freedom of expression and press of one of the parties and the right to protect the honor and reputation of the other. The criteria that should be used during this balancing, to the extent appropriate to the concrete case, are generally as follows:

i. Who made the statements,

ii. Who is the targeted person, his level of fame and previous behavior, as well as whether the limits of criticism he has to endure are wider than those of an ordinary citizen,

iii. Whether the statements contribute to a discussion of general interest, the weight of the rights that the public and other people have against expressions of thought,

iv. The value of informing the public, the existence of social interest and whether the subject is up-to-date,

v. Whether the plaintiff has the opportunity to respond to the statements directed to him,

vi. The impact of the statements on the targeted person's life,

vii. Whether the expressions subject to legal sanction have been removed from the context in which they were used,

viii. Whether the applicant's fear of being subject to sanctions will have a deterrent effect on the press,

ix. "Whether the statements in question can be described as explanations of material facts or value judgments," 30/7/2025 T. 2023/103126 B.No

PRIVACY OF PRIVATE LIFE BETWEEN SPOUSES

While specifying the definition and scope of private life above, we used the expressions "the area that people do not want an outsider to be aware of". Marriage and spouses living in the same house does not make them a single individual. Married people should also avoid intervening in each other's private lives. As a matter of fact, according to the decision of the 12th Criminal Chamber of the Supreme Court of Appeals No. 2019/5170 K.:

"The right to privacy, which depends on the individual and is related to his personal development, is not completely eliminated by marriage. The fact that the parties are married and share the same residence and therefore have easy access to each other's personal belongings and private life matters cannot be interpreted as the spouses being able to constantly monitor and supervise each other without any limits.

VIOLATION OF PRIVACY IN DIVORCE CASE

Evidence obtained by violating private life is considered unlawful evidence and is not taken as basis for judgment. However, in some cases, a person has no way of obtaining evidence other than violating the right to privacy. In practice, this type of evidence is most commonly encountered in divorce cases. In such cases, the Supreme Court rules that the right to privacy is not violated. As a matter of fact, a Supreme Court decision dated 2019 is 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 (such as sexual assault, insult, threat, slander or blackmail), or in order to prevent an unfair attack directed at himself or his family unit, damaging 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, the person who carried out the attack "It is not possible to accept that the actions of reading private life information, listening to, monitoring or recording speech and communication contents or sounds and images related to private life, recording, seizing and disseminating personal data without the knowledge and consent of the party are unlawful, and in fact, in these cases, it cannot be said that the person acts with the awareness that he is acting against the law."

The crime of violating the privacy of private life can only be committed intentionally. Therefore, in cases where there is no intention, there will be no crime. As a matter of fact, the decision of the 12th Criminal Chamber of the Supreme Court of Appeals, numbered 2015/7817 K., states this situation; "It is understood that the defendant's action of taking photographs of the participant while walking with other men constitutes the crime of recording images of private life as regulated in the 134/1-2 sentence of the Turkish Penal Code, but in the act of presenting the photographs in question as evidence to the divorce file between the defendant's son and the participant, the defendant did not act with the awareness that he was acting against the law in the divorce case between his son and his daughter-in-law, aiming to prove that the participant did not fulfill his obligation of loyalty towards his son, and the defendant is accused of violating the right to privacy." "While it should have been decided to acquit the people, it was deemed wrong to decide to convict the people for the crime of disturbing the peace and tranquility." He explained it as follows.

COMPLAIN AND RECONCILIATION FOR THE CRIME OF VIOLATION OF PRIVACY

The investigation and prosecution of all simple and qualified cases of the crime of violating the privacy of private life depends on the complaint. The complaint period is 6 months. This period begins with learning of the act and the perpetrator. In case of abandoning the complaint, the perpetrator is not punished. The competent court is the criminal court of first instance.

The crime is subject to conciliation procedure. Therefore, the conduct of investigation and prosecution depends on the completion of the conciliation procedure.