Violation of Privacy in Turkish Criminal Law and Comparative Law (III)

The Crime of Eavesdropping and Recording of Conversations Between Individuals

Photo by Esra Derin Yenidünya

Individuals’ face to face communications are protected by the 133th article of the Turkish Criminal Code. This article states that;

Any person who listens to conversations not in open public between the individuals without the consent of any one of the parties utilizing a listening device or records these conversations by use of a recording device, is to be punished with imprisonment from two years to five years[1].

Any person who records a conversation in a meeting not open to the public without the consent of the participants by use of recorder, is to be punished with imprisonment from sixmonths to two years, or an imposed a judicial fine.

(Amended on 2 July 2012 — by article 80 of the Law no. 6352) Any person who unlawfully disclosure of the information obtained through recording private conversations between persons shall be sentenced to imprisonment for a term of two to five years or a judicial fine up to four thousand days. Where such conversation is published in the press or broadcasted, the penalty to be imposed shall be the same.

The article defines three separate and independent types of crime. The first paragraph regulates “listening of private conversations between individuals by a listening device or recording these conversations by use of a recorder”, the second paragraph regulates “recording a conversation in a meeting not open to public by use of a recorder” and the third paragraph regulates “unlawfully disclosure of the information obtained through recording private conversations between persons”.

These types of crimes have been regulated by the 201th article[4]of the German Criminal Code, by articles 226–1 and 226–2 [5] of the French Criminal Code and by articles 179bis and 179ter of the Swiss Criminal Code[6].

In these types of crimes, the privacy of communications done by individuals through specific modes is protected[7].

The first paragraph protects “conversations not open to public between individuals” and the second paragraph protects “conversations in a meeting not open to the public”. While the offender of the crime defined in the first paragraph can only be a person who is not one of the parties of the conversation, the offender of the crime defined in the second paragraph has to be a person who has participated to the meeting where the conversation took place. Therefore, the crime regulated by the second paragraph of the 133th article is a specified crime.

First of all, there has to be a “conversation”[8]for the crime defined in the first paragraph (listening conversations not open to public between the individuals without the consent of any one of the parties or recording these conversations by use of a recorder) to occur. “Conversation” is defined as “expressing thoughts by word, communicating with surroundings by using the language and let them know about thoughts and feelings” in the dictionary.

A conversation is a verbal communication between at least two persons. It is sufficient that two persons connect with each other for the purpose of having a conversation and the fact that one of them is constantly speaking while the other remains silent, does not change the fact that this is a conversation. However, monologues cannot be covered within the scope of conversation since there is no intended audience. To constitute the subject of this crime, the conversation has to be closed to the public, otherwise there wouldn’t be any privacy legally protected[9]. A conversation is open to public when it is realized with the consent of the speakers in front of a community with whom he does not have close personal or familial bonds. Therefore, rather than the place where it is carried out, the construction style of the conversation is important. Thus, even a conversation between two persons carried out in a street or stadium where thousands of people are present, can be considered as closed to public if this conversation can be heard only by special effort. On the other hand, a conversation carried out at home or in a building will be considered open to public if it can be heard by other people outside because of the volume of the voices, because in that case, third parties could hear this conversation without making a special effort[10].

The offenses of either “listening with a device” or “recording by a recorder” are sanctioned in the article and therefore the execution of one of these acts is sufficient for the occurrence of the offense. The code regulates the listening by a device. A listening device is a tool which helps to move the conversation out of its normal hearing range and usually to record it. For example, a stethoscope or microphone leaned against a wall. The recording of a conversation by a recording device, is to record a conversation while it is carried out with the help of a technological device. The crime regulated by the third paragraph of this article will come into question, if someone allows third parties to listen to an existing recording or copies this recording and distributes them[11]. The article clearly states that for the occurrence of the crime, a conversation has to be listened to by a listening device or recorded by a recording device. To listen to a conversation without using any devices by special efforts or by lip-reading and to record a conversation by writing by hand, does not constitute this crime. In this case, if other conditions are met, this will result in the occurrence of the crime regulated by the 134th article (violation of privacy) of the Turkish Penal Code[12].

In terms of “recording a conversation in a meeting not open to public by use of recorder” (art. 133/2), the act of communication has to be in the form of a speech attended by at least three people. As a matter of fact, the plural suffix at the term “participants” shows that there has to be at least two persons[13]. However, one can question which article of the Code is going to be applied if a conversation closed to public between two persons is recorded without the consent of the other. In this case, according to the principle of legality this will not constitute an act defined in the 133th article. It must be noted that even if when one of the parties of a conversation carried out between two persons is recorded by one of them the crime defined in article 133 will not occur, disclosing this recording may constitute the crime defined in article 134/2. The formation of the crime defined in article 133/2, depends on the execution of the act “recording by a device without consent”. As this article clearly states that for the occurrence of this crime the recording of the voices is necessary, recordings with both sounds and images will constitute the subject of this crime while a recording containing only images without voices will not. In the case of a recording containing only images, the crime defined in article 134/2 may occur if the other conditions are met.

Before amendedon July 2, 2012 by article 80 of the Law no. 6352 in the third paragraph “deriving benefit by using information known to be acquired by committing the acts cited in the first two paragraphs, or giving this information to others or allowing others to obtain this information” defined as a separate type of crime. After this amended, elements of the crime have changed. According to new regulation, only “of the information obtained through recording private conversations between persons”is objective element of the crime. Disclosure means giving information to third parties about the content of communication[14]. To be considered disclosure, it is not necessary to perform the disclosure publicly, providing information to only one person is sufficient[15]. However, where such conversation is published in the press or broadcasted, the penalty to be imposed shall be the same.

This type of crime regulates the interdiction of the unlawfully publicity of acquired information. So, the act of disclosure is defined as a crime in this paragraph regardless of the lawfulness of the recording of the conversation. For example, according to the 140th article of the Turkish Criminal Procedure Code, the conversations carried out in public areas or at the workplace of people, can be recorded in the presence of certain conditions. In this case, as the recording of the conversations will constitute a performance of the provision of law, this act will be considered as lawful. But any person or public officers to disclosure of the information unlawfully to the occurrence of this crime.

The offender of this crime does not necessarily have to listen or to record the conversation in person. A person who is aware that the content of the conversation has been private as well as the offender of the other crimes cited in the first and second paragraphs can also commit this crime. In the case of a person having committed both of the crimes cited in the first and in the second paragraphs (133/1–2) and the crime defined in 133/3, he will be punished both for unlawful listening or recording of the conversation and disclosure of the information.

In the case of commission of this offense by a public officer or undue influence based on public office (art. 137/1-a) or by exploiting the advantages of a performed profession or art (art. 137/1-b), the punishment is increased by one half.

In terms of the subjective element of the crime, this crime can only be committed deliberately.In this regard, the execution of these acts by the violation of the obligation of attention and care (by negligence) shall not constitute a crime. The crime regulated in the first paragraph of this article can also be committed with probable intent (Turkish Criminal Code, art. 21/2). As the third paragraph of the article mentions “unlawful disclosure” the crime can only be committed via direct intent and cannot be committed with probable intent.

For the crimes regulated by article 133, in terms of the elements of unlawfulness,by stating “without the consent of parties” and “without the consent of other parties of the conversation” the consent of the persons has been defined as one of the major elements for the occurrence of the crime. In this regard, if one of the parties of the conversation or the people participating to the meeting where the conversation is carried out shows consent for the listening or the recording, as these acts will not be literal, they will not constitute this crime and implied consent is also valid. The issue to be a subject of discussion is whether a recording would be lawful or not if the party of the conversation is aware of the recording and objects to it. In this case, as the person who is speaking is aware of the recording and continues to speak despite this fact, it has to be accepted that there is an implied consent, unless the speaker has been deprived his right to remain silent[16].

For these crimes, performance of a provision of law can constitute the finding of just cause.For example, according to the 140tharticle of the Turkish Criminal Procedure Code, the conversations carried out in public areas or at the workplace of people, can be recorded in the presence of certain conditions. In this case, as the recording of the conversations will constitute a performance of the provision of law, this act will be considered as lawful. But any person or public officers to disclosure of the information unlawfully to the occurred of the crime (art. 133/3).

Security precautions specific to legal entities are imposed in case of commission of this offence by legal entities (art. 140).

Prosecution for these crimes is bound to complaint (art. 139).

[1]By Article 80 of the Law no. 6352 dated 2 July 2012, the expression of “is to be punished with imprisonment from two months to six months” was amended as “is to be punished with imprisonment from two years to five years” in paragraph 1.

[2]By Article 80 of the Law no. 6352 dated 2 July 2012, the expression of “is to be punished with imprisonment up to six months” was amended as “is to be punished with imprisonment from six months to two years”.

[3]Before amended on 2 July 2012, the third paragraph regulated; “deriving benefit from disclosure of information obtained unlawfully or allowing others to obtain information in this manner”.

[4]The article 201 of the German Criminal Code regulates the “Violation of the Confidentiality of the Spoken Word” by stating that;“(1) Whoever, without authorization:

1. makes an audio recording of the privately spoken words of another; or

2. uses, or makes a recording thus produced accessible to a third party,

shall be punished with imprisonment for not more than three years or a fine.

(2) Whoever, without authorization:

1. listens with an eavesdropping device to privately spoken words not intended to come to his attention; or

2. publicly communicates, verbatim, or the essential content of the privately spoken words of another recorded pursuant to subsection (1), number 1, or listened to pursuant to subsection (2), number 1, shall be similarly punished. The act under sentence 1, number 2, shall only be punishable if the public communication is capable of interfering with the legitimate interests of another. It is not unlawful if the public communication was made for the purpose of safeguarding preeminent public interests.

(3) Whoever, as a public official or a person with special public service obligations, violates the confidentiality of the spoken word (subsections (1) and (2)), shall be punished with imprisonment for not more than five years or a fine.

(4) An attempt shall be punishable.

(5) The audio recording press and broadcast and eavesdropping devices which the perpetrator or the inciter or accessory used may be confiscated. Section 74a shall be applicable.

[5]The article 226–1 of the French Criminal Code states that “A penalty of one year’s imprisonment and a fine of €45,000 is incurred for any wilful violation of the intimacy of the private life of other persons by resorting to any means of:

1° intercepting, recording or transmitting words uttered in confidential or private circumstances, without the consent of their speaker;

2° taking, recording or transmitting the picture of a person who is within a private place, without the consent of the person concerned.

Where the offenses referred to by the present article were performed in the sight and with the knowledge of the persons concerned without their objection, although they were in a position to do so, their consent is presumed.”

The article 226–1 of the French Criminal Code states that “The same penalties apply to the keeping, bringing or causing to be brought to the knowledge of the public or of a third party, or the use in whatever manner, of any recording or document obtained through any of the actions set out under article 226–1.

Where the misdemeanor under the previous paragraph is committed through the press or by broadcasting, the specific legal provisions governing those matters are applicable to define the persons who are responsible.”

[6]The article 179ter of the Swiss Criminal Code, regulates “unauthorized recording of conversations” by stating that; “Any person who, as a participant in a private conversation, records the conversation on a recording device without the permission of the other participants, any person who stores or makes use of a recording, makes the recording available or discloses its content to a third party when he knows or must believe that the recording has been made as the result of an offence under paragraph 1 above, shall on complaint be liable to a custodial sentence not exceeding one year or to a monetary penalty.”

The article 179bis of the Swiss Criminal Code, regulates “Listening in on and recording the conversations of others” by stating that; “Any person who by using a listening device and without the permission of all those participating, listens in on a private conversation between other persons, or records such a conversation on a recording device, any person who makes use of information that he knows or must believe has come to his knowledge as the result of an offence under the above paragraph or makes such information known to a third party, any person who stores or allows a third party access to a recording that he knows or must believe has been made as the result of an offence under paragraph 1 above, shall on complaint be liable to a custodial sentence not exceeding three years or to a monetary penalty.”

[7]The prevention of communication between people violates the paragraphs 1 and 2 of the 124th article of the Turkish Criminal Code (for example lacerating letters in the mailbox, throwing away letters instead of giving them to whom they are addressed to, cutting the telephone lines, preventing phone communications by creating a magnetic field), because by committing the actions given in the examples, the right which is violated is not the right to respect for the privacy of communications; but the right to communicate.

[8]See, www.tdkterim.gov.tr/bts (16.05.2012)

[9]Stratenwerth, Günter, Schweizerisches Strafrecht. Besonderer Teil I: Straftaten gegen Individualinteressen, Fünfte, teilweise neubearbeitete Auflage, Bern 1995, p.225, 226.

[10]Stratenwerth, p.225,226.

[11]Stratenwerth, p.228,229.

[12]Koca, Mahmut, “Haberleşmenin, Konuşmanın ve Özel Hayatın Gizliliğini İhlal Suçları (TCK.m.132–134)”, in: Ceza Hukukunun Güncel Sorunları, Kolokyum (Editör: M. Tevfik Gülsoy), Erzurum 8 Ekim 2010, p.92,93; Özbek, Veli Özer- Kanbur, M. Nihat-Doğan, Koray-Bacaksız, Pınar-Tepe, İlker, Türk Ceza Hukuku Özel Hükümler, Ankara 2010, p.552.

[13]The preamble of this article states that; “the recording of a conversation closed to public between people by one of the participants without the consent of the other participants has been defined as a crime”.

[14]Koca, p.72, 73; Tezcan, Durmuş-Erdem, Mustafa Ruhan-Önok, R. Murat, Teorik ve Pratik Ceza Özel Hukuku, 7thEdition, Ankara 2010, p.500.

[15]Koca, p.73; Tezcan-Erdem-Önok, p.500.

[16]Stratenwerth, p.225.

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A. Caner YENİDÜNYA

Prof. Dr. , Hukuk, Ceza ve Ceza Muhakemesi Hukuku, Kriminoloji, İnfaz Hukuku