Resource guide of turkish high court judgments on freedom of expression

ASCERTAINING AN ACT OF DEFAMATION

Court of Cassation (Criminal General Council 2009/9-190 E., 2009/253 K.)

"Determining what type of acts constitutes a violation of dignity and reputation must be done according to the average mentality and attitudes prevalent in the society; the criterion cannot be the individual's personal sensitivities, as a simple case of disrespect cannot be considered defamation or insult. 

General intent is adequate for the crime to have occurred; the perpetrator needs no further motive that is political or has to do with the title or office of Head of State."

Court of Cassation (General Council of Criminal Law, File Number: 2014/2-328, Judgment Number: 2014/386)
"The legal value protected through the punishment of defamation acts is the dignity, honor and reputation of the individual, and the act must have been committed for the purpose of disparaging the aggrieved. Whether an act is defamatory may be relative and may change depending on the time, place and situation. Not all severe criticism or disturbing statements towards an individual constitute the crime of defamation; statements must openly claim the presence of an act or event that is clearly offensive against dignity, honor and reputation, or be of insulting nature.
Words to the effect of wishing from the creator that a person suffers hardships and losses cannot be considered defamatory unless such words contain an allegation of an act or event that is clearly offensive against dignity, honor and reputation, or are of insulting nature.
Therefore, while an ill wish expressed by the words "God damn you" may be disturbing, it does not contain an allegation of an act or event that is clearly offensive against dignity, honor and reputation, or is of an insulting nature, and as such cannot be considered a crime pursuant to Article 125 of the Turkish Criminal Code.
The words "God damn you" uttered by a defendant who was being tried for allegations of robbery to the judge of the court for believing that the judge wrongfully sentenced the defendant to imprisonment may be an ill wish that is irreverent, disrespectful and impolite; however, the statement does not contain an allegation of an act or event that is clearly offensive against the dignity, honor and reputation of, or is of an insulting nature to the complainant judge, therefore the act does not contain the legal basis of an act of defamation."


Dissenting opinion:
“In his dissenting opinion, Council Member O.K. stated: "Upon being sentenced to imprisonment, the accused said 'God damn you' to the judge in the presence of other court officials and left the courtroom. The majority considered this an ill wish and resolved that there is no act of defamation. Although the statement is essentially an ill wish, it may be characterized as an insult depending on the event and the utterer. If this statement were to be used with reference to the judge in a printed article or TV interview, the event may not be of criminal nature depending on the circumstances. However, when it is uttered during the official duty of the judge and in a way to berate the prestige or disparage the authority of the position occupied by the judge, it is insulting in nature.
When the accused says 'God damn you' to a judge in the presence of police officers, the prestige of the person and the court is damaged and the authority of the judge is shaken. This leads to undermining public authority. The last sentence of Article 26/2 of the constitution and Article 10/2 of the European Convention on Human Rights on freedom of expression grant a privilege to the judiciary and the judicial authority in terms of freedom of expression.”

Court of Cassation (4th Criminal Chamber, File Number: 2014/7349, Judgment Number: 23/2014/27575)
"Whether an act is defamatory may be relative and change depending on the time, place and situation. Not all severe criticism or disturbing statements towards a public official or a civilian constitute the crime of defamation; statements must openly claim the presence of an act or event that is clearly offensive against dignity, honor and reputation, or be of insulting nature.
When interpreting Article 10 of the Convention on freedom of expression, the European Court of Human Rights states that pluralism, tolerance and open-mindedness constitute the essential foundations of any democratic society and that one cannot speak of a democratic society in their absence; therefore, limitations on freedom of expression must not be in violation of these values and must be proportionate to the legitimate legal purpose, and that the Article is applicable not only to ideas that are favorably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb part of the government or the people."

FAIR BALANCE BETWEEN FREEDOM OF EXPRESSION AND THE PROTECTION OF OTHERS’ REPUTATION
Constitutional Court (Nilgün Halloran Application: 2012/1184, Judgment Date: 16/7/2014)

"The State is required to strike a fair balance between its positive obligations in protecting the tangible and spiritual existence of individuals and of protecting the individual's dignity and reputation, and the counterparty's enjoyment of the Constitutional right to freedom of expressing and disseminating thought."

Constitutional Court (Emin Aydın Application: 2013/2602, Judgment Date: 25/6/2014; İlhan Cihaner Application: 2013/5574, Judgment Date: 30/06/2014; Adnan Oktar Application: 2013/1123, Judgment Date: 2/10/2013)

"When finding this balance, limitation must be imposed for the specific legitimate reasons prescribed in Articles 13 and 26 with consideration for necessity in a democratic society and proportionality between the means and ends of limitation while ensuring that the essence of the right remains intact."

Council of State (13th Chamber, E:2006/6232)

"It is important to specify the balance between freedom of publication and personal rights. Therefore, it must be determined whether the publication is an attack against the spiritual existence of persons, or is limited to criticism."

Constitutional Court (Emin Aydın Application: 2013/2602, Judgment Date: 23/1/2014)
“In the Axel Springer AG application, the ECHR developed some criteria to establish whether conflicting interests are balanced in the case of a clash between freedom of expression and the reputation of others, therefore whether the interference is necessary and proportionate in a democratic society. These criteria are a) The contribution of published articles or statements to a general discussion for public benefit; b) the level of the targeted person's renown and the purpose of the writing; c) the conduct of the target prior to publication; d) the accuracy and the way in which the information is acquired; e) the content, form and consequences of publication; and f) the severity of the sanction.”
Constitutional Court (Nilgün Halloran Application: 2012/1184, Judgment Date: 16/7/2014)

"In a democratic society, one should evaluate whether there is a reasonable balance between the applicant's right to express and disseminate opinions and the protection of the reputation or rights of others."

SEVERITY OF INJURY AGAINST PERSONAL REPUTATION
Constitutional Court (Nilgün Halloran Application: 2012/1184, Judgment Date: 16/7/2014)

"In order for Paragraph 1 Article 17 of the Constitution on the right to protect one's spiritual existence to be applied to a case, the attack against personal reputation must have a certain degree of severity and have the effect of violating the applicant's right to claim protection of personal reputation."

RUDE AND DISTURBING STATEMENTS THAT ARE NOT DEFAMATORY IN NATURE
Court of Cassation (4th Criminal Chamber, 27.3.2014 - 2013/1773-2014/9702)
"The defendant's words 'why are you making my nephew stand in front of the class, you can't punish this kid' to the teacher who gave a punishment to the defendant's nephew, and the words ‘who do you think you are, I said shut up’ to another teacher who warned the defendant are not of a nature that is defamatory to the honor, dignity and reputation of the interveners. These words constitute a disturbing way of conduct and the elements of a defamation offense are not present..."
Court of Cassation (4th Criminal Chamber, 20.3.2014 - 2013/3904-2014/8593)
“The statements of the defendant, allegedly targeting N.Y. who is the province health director and was running an investigation about the defendant, 'the director who personally told me his father was an alcoholic, the province health director and general practitioner Necip' found in the online request for information are rude and disrespectful words, yet are not of a nature that is defamatory to the honor, dignity and reputation of the intervener..."
Court of Cassation (4th Criminal Chamber, 13.2.2014 - 2012/13500 - 2014/233)
"The words 'get out of this town' uttered by the defendant headman of the village to the interveners who arrived in the village to promote products are not of a nature that is defamatory to the honor, dignity and reputation of the interveners. These words constitute a disturbing way of conduct and the elements of a defamation offense are not present..."
Court of Cassation (4th Criminal Chamber, 27.1.2015 - 2013/22906 - 2015/2218)
“The defendant's words ‘what a wiseguy you are’ to the gendarmerie officer at the entrance of the military outpost after the defendant's demand for seeing the outpost commander was refused constitute a disturbing way of conduct and the elements of a defamation offense are not present…"

(4th Criminal Chamber, 27.1.2015 - 2013/22906 - 2015/2218)

“In the incident in trial, the complainant Emrullah, a security officer, alleges that the defendant said to him 'what the hell are you talking about?' These words constitute a disturbing way of conduct and the elements of a defamation offense are not present..."
Court of Cassation (4th Criminal Chamber, 29.1.2015 - 2014/35909 - 2015/2384)
“The defendant's words 'How the hell can you stop me, who do you think you are, this is my turf' uttered to the intervener, a traffic warden who stopped the defendant while the defendant was driving in the wrong direction on a one-way street, constitute a disturbing way of conduct and the elements of a defamation offense are not present…"
SEVERE AND DISTURBING CRITICISM THAT IS NOT DEFAMATORY IN NATURE
Court of Cassation (4th Criminal Chamber, 29.4.2014 - 2014/16690/-14210)
"The defendant, who is the attorney of the creditor, believes that the trial took over 15 months due to the judge appearing late and unprepared, and argues that the interim judgment on the day of the incident contained omissions, as a result of which the defendant addressed the complaining judge, "Look, we are not claiming anything here; this is the address that is in police records. This is what happens when you show up in court without looking at the file. It has been 15 months and this is not even a criminal investigation. You did not include the statement from the tax office in the file, which shows you never read it. What are we, your servants?" These statements are not of a nature that is defamatory to the honor, dignity and reputation of the intervener; they constitute offensive behavior and severe criticism, and the elements of a defamation offense are not present..."
Court of Cassation (4th Criminal Chamber, 13.1.2014 - 2013/28671-2014/196)
"The defendant, upon inquiring about the investigation file submitted previously, was told by the complainant Prosecutor that 'a notice was served and he should ask the mailman instead' upon which the defendant addressed the complainant with 'what does the mailman know? It's not like any mail arrived. There is an attorney in it, that's why you are closing the file. I'm going to write this up, and you are in it too, so I'm going to write you up as well'; when considered as a whole, these words are not of a nature that is defamatory to the honor, dignity and reputation of the complainant. These words constitute an impolitely severe criticism and the elements of a defamation offense are not present."
Court of Cassation (4th Criminal Chamber, 29.1.2014 - 2012/31058-2014/2363)
"The defendant asked the intervening police officers why they were issuing a ticket, upon which the defendant received no reply and the police officers got in their patrol car and drove away. The defendant followed the patrol car and, when the car stopped in traffic, approached the police officers to say 'you are living off our taxes, you get paid with our taxes, you have to listen to what I say'; these statements, when considered as a whole, are not of a nature that is defamatory to the honor, dignity and reputation of the complainant. These words constitute a severe criticism of the parking ticket and the elements of a defamation offense are not present..."
Court of Cassation (4th Criminal Chamber, 15.1.2014 - 2012/27782 - 656)
"The defendant was convicted of battery and robbery by the 3rd Criminal Court of Izmir and, upon hearing the sentence, he said to the judge panel 'give this job up and go sell tomatoes' which are not of a nature that is defamatory to the honor, dignity and reputation of the complainants. These words constitute severe criticism and the elements of a defamation offense are not present..."
Court of Cassation (4th Criminal Chamber, 12.3.2014 - 2012/28050 - 2014/8102)
"Believing that the judge was making an unfair judgment, the defendant demanded recusation and, in the argument that ensued, said 'do you think you are God? This isn't your family farm'; these words, when considered as a whole, are not of a nature that is defamatory to the honor, dignity and reputation of the complainant. These words constitute severe criticism and the elements of a defamation offense are not present. Furthermore, the defendant's words 'I will report you, you'll see' cannot constitute the offense of threat and are merely a statement that the defendant will use his right of complaint."
Court of Cassation (4th Criminal Chamber, 26.3.2014 - 2013/3727 - 2014/9294)
"During an argument with the complainant physician on not getting the patient's consent and not being admitted for examination, the defendant said 'You may be a physician but I'm an engineer. Learn how to talk to people, use your manners’; these words, when considered as a whole, are not of a nature that is defamatory to the honor, dignity and reputation of the complainant. These words constitute severe criticism and the elements of a defamation offense are not present..."
Court of Cassation (4th Criminal Chamber, 9.6.2014 - 2013/5577 - 2014/20763)
“When interpreting supranational human rights law in the context of the Convention, the European Court of Human Rights (ECHR) ruled that it may be necessary to protect public servants from offensive, abusive and defamatory attacks which aim at affecting them in the performance of their duties and to damage public confidence in them and in the office they hold (ECHR Busuioc v. Moldova, 2004, paragraph 64); yet the Court also reiterates in this context that the limits of acceptable criticism may in some circumstances be wider with regard to civil servants exercising their powers than in relation to private individuals (cf. ECHR Steur v. the Netherlands, 2003, paragraph 40). The ECHR also accepts that value judgments which do not allege an action and do not require factual proof must be considered within the scope of freedom of expression and right to criticism even if such criticism is of a disturbing nature (cf. ECHR Hriko v. Slovakia, 2004, paragraph 40, 45; Jerusalem v. Austria, 2001, paragraph 44; Sokolowski v. Poland, 2005, paragraph 47; Paturel v. France, 2005, paragraph 37; Harris/Boyle/Bates/Buckley, Avrupa İnsan Hakları Sözleşmesi Hukuku, Ankara 2013, pp. 518-520). ”
"In the case at hand, the defendant's comments on his own Facebook page that read 'Dear A.Y., you hit the nail on the head here. Nearsighted birdbrains shouldn't be mayors. They are supposed to run this city but don't have what it takes when they realize they can't do their job right. Isparta over there has roads that are 30-40 meters wide, while here in Burdur we have tiny alleys for roads and even they are not properly taken care of. I'm wondering what our deputies did about this the whole summer. Weren't we supposed to have a strong city under a strong government? What happened with all that? Did somebody mess it up?' target the Mayor of Burdur, a political figure; considering the purpose, forum and context of such statements, they are value judgments of the defendant as to how a mayor should be, the state of the city he lives in, and the inadequacy of municipal services. These words are a severe criticism and statement of thoughts and opinions and do not constitute the elements of a defamation offense.”
NARROWER INTERPRETATION OF DEFAMATION FOR POLITICIANS AND HIGH-LEVEL PUBLIC OFFICIALS
Court of Cassation (4th Civil Chamber, File Number 2014/1689, Judgment Number 2014/17271)

"The boundaries of acceptable criticism are wider for a politician compared to that of a private citizen. In contrast to a private citizen, a politician inevitably and deliberately opens all of his statements and actions to the close scrutiny of the press and the public."

Council of State (13th Chamber, E:2006/6232)

"It is a prerequisite of involvement in politics that the manner and extent of criticism directed to a politician is different, stronger and even severer compared to an ordinary citizen. The position of politicians to influence and steer society expands the boundaries of acceptable criticism.

As stated by the European Court of Human Rights in a number of judgments: "Freedom of political debate is at the very core of the concept of a democratic society which prevails throughout the Convention. The limits of tolerable criticism are accordingly wider as regards a politician acting in a public office than as regards an ordinary citizen. ...

The limits of acceptable criticism are accordingly wider as regards a politician as such than as regards a private individual (Lingens v. Austria, 1986)."

Council of State (13th Chamber, E:2014/3811-Dissenting opinion)

"In the Lingens v. Austria judgment, the ECHR emphasized the critical function of the press in the political sphere and the workings of democracy. In that case, ECHR pointed out that freedom of press affords the public the means of forming an opinion about political leaders and that freedom of political debate is at the very core of a democratic society. Specifically, "The limits of acceptable criticism are accordingly wider as regards a politician as such than as regards a private individual. Unlike the latter, the former inevitably and knowingly lays himself open to close scrutiny of his every word and deed by both journalists and the public at large, and he must consequently display a greater degree of tolerance. Article 10 para. 2 enables the reputation of all individuals to be protected, and this protection extends to politicians too. But in such cases the requirements of such protection have to be weighed in relation to the interests of open discussion of political issues.

The Court of Cassation has many rulings in the same direction. "Compared to public individuals, the limits of criticism for private individuals are tighter. On the other hand, the petitioning bureaucrat must be able to tolerate more criticism than usual, even if the criticism is severe." (Judgment of the 4th Judicial Chamber of the Court of Cassation dated 4.12.2014 and numbered E:2014/1846, K:2014/16594.)

Depending on the function assumed by the individual in society, criticisms may increase in number as well as have very severe content when necessary. This is because the press criticizes on behalf of the public. There is no institution, organization, idea or opinion that is immune to criticism in democracies. Acting in the political sphere means accepting the responsibilities and consequences brought by this function. It is not only a right but also a duty for the press to criticize political persons, administrators and directors and to share news about them on a continuous basis. Individuals who take up duties in the political sphere must do so in full knowledge and consideration of the fact that the press will show a special interest in them, and that the press will criticize, warn, and sometimes direct harsh criticism at them. Even if the conduct of political figures is completely lawful and free of illegal activity, they should be aware and cognizant of the possibility that the press will question behaviors which are contradictory to their value judgments. ("Kişilik Hakları-Medya Etik Yargı Kararları", Fikret İlkiz and Barış Günaydın, Küresel İletişim Dergisi, Issue 2, Fall 2006)

"In conclusion, it must be accepted that members of the government and other politicians, as well as high-ranking bureaucrats, must employ considerably higher limits of 'tolerance' compared to ordinary citizens when regarding criticisms and satirical cartoons appearing in print or visual media with reference to their duties. Discussions and criticisms in the political sphere that may be harsh and offensive to an extent must be considered within the scope of 'public benefit' in democratic regimes." (Türk Borçlar Hukuku, Prof. Dr. Safa Reisoğlu, p. 254)”

Constitutional Court (Nilgün Halloran Application: 2012/1184, Judgment Date: 16/7/2014)

"The positions of the parties of the discussion must also be considered. The applicant is a faculty member and Vice President of the university, while the complainant is a faculty member with no administrative duty. When the freedom to express and disseminate thought conflicts with the protection of the reputation and prestige of others, if the person whose reputation is at stake is a public official, this person's public capacity must be considered when balancing rights (Application 2013/5574, 30/6/2014, § 71; for an ECHR judgment on extending more flexible protection to publicly known figures, cf. Minelli/Switzerland (k.k), Application 14991/02, 14/6/2005). Nevertheless, if the person whose reputation is at stake is an ordinary citizen, as is in the case at hand, protection must be offered at a high level and this should be considered when balancing rights. “

Constitutional Court (Emin Aydın Application : 2013/2602, Judgment Date: 23/1/2014)

"ECHR has a different approach to civil servants. Although the limits of acceptable criticism with regard to civil servants are not identical to those for private individuals, they are not as wide as that of politicians since civil servants exercising their powers require the trust of the public which they serve; this can be achieved by protecting civil servants against unfounded allegations (cf. Steur v. the Netherlands, Application 39657/98, 28/10/2003, §40; Lesnik v. Slovakia, Application 35640/97, 11/3/2003, §53). The court also rules that, when exercising freedom of expression, the press must act according to its duties and responsibilities with full awareness that news publicized in the fulfillment of this duty may cause severe infringements of the honor and rights of individuals, and respect the limits enforced for the protection of the honor and rights of others (cf. Observer and Guardian v. UK, Application 13585/88, 26/11/1991).

When discussing the "content of publication" in finding a balance between the protection of the rights and reputations of individuals and the freedom of expression and press, ECHR notes that public authorities may interfere with freedom of expression and press in the presence of hateful or violent discourse provided that such formalities, conditions, restrictions or penalties are proportionate to the legitimate purpose, and argues that interference in and even prevention of any expression that provokes or endorses hate including intolerance may be necessary."