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

Violation of Privacy of Individual Life

The 134th article of the Turkish Criminal Code states that; “(1) Any person who violates secrecy of private life of another person’s, is punished with imprisonment from one year to three years. In case of violation of privacy occurs as a result of recording images or sound, the penalty to be imposed shall be increased by one fold[1]

(2) Any person who unlawfully discloses the images or sounds of another person’s private life shall be sentenced to a penalty of imprisonment from two years to five years. In case of the commission of this offense through press or broadcast, the penalty shall be the same”.

Two different types of crimes have been regulated with this article. In the first paragraph violation without use of audio-visual recording devices has been defined as a crime, however, in the second sentence, the violation of privacy by use of audio-visual recording devices has been set as an aggravated situation which necessitates the increasing penalty by one-fold.

The second paragraph regulates the unlawfully disclosure of images and sounds of another person’s private life as a separate crime.The commission of this offense through press and broadcast, the penalty to be imposed shall be the same.

This article is of a general crime compared to other provisions regulating the protection of privacy[2].

In comparative law, the privacy of private life is protected also in the Codes of other countries. For example, there are protections similar to the Turkish Criminal Code, in the article 179quarter of the Swiss Criminal Code, the article 201a of the German Criminal Code and the article 226–1 of the French Criminal Code.

The article 226–3 of the French Criminal Code states that “The same penalties apply to the manufacture, import, detention, exhibition, offer, rental or sale, in the absence of a ministerial authorization whose conditions of granting are determined by decree of the Conseil d’Etat, of equipment designed to perform operations which may constitute the offence set out under the second paragraph of article 226–15 or which, being designed for the detection of conversations from a distance, enable the commission of an offence under article 226–1 and are enumerated on a list drawn up pursuant to the conditions determined by that Decree” and the article 179sexies of the Swiss Criminal Code states that “Any person who manufactures, imports, exports, acquires, stores, possesses, transports, passes on to another, sells, leases, lends or in any other manner markets, promotes or provides instruction on the manufacture of technical devices which are in particular intended for unlawful listening or these unlawful making of sound or image recordings, sanctions shall be liable to a custodial sentence not exceeding three years or to a monetary penalty”. The lack of a similar regulation regarding technical listening devices is an important deficiency in the Turkish Criminal Code, as in Turkey these kinds of devices are commonly, sold especially on the Internet.

Private life means an area of living free from unfair external interference where people can freely build and develop their self. This area can be an area which is closed to the public and which the individual may share with others by being in close relationships with these people. Both of these sides of private life are protected by the 134th article. However, individuals’ activities which are open to the public and that take place in front of others in the public sphere of life and are not protected under the scope of this article[3].

The first article does not only protect private life but also the “privacy” of this private life. In this sense, the violation shall not only be related to private life but also to the private sphere of this life. For example, taking a photo of two persons walking hand in hand in the street and making comments about their relationship does constitute interference with their private life, but not to the private sphere. Indeed, the preamble of this article states that violation of privacy means “entrance in private sphere of peoples’ lives and recording or detecting facts about their lives that cannot be known by others.” For example, spying on the interior of someone’s home, recording his image in places closed to the public or listening to a monologue of a person give rise to the occurrence of this crime[4]. In the case of violation of privacy by use of audio-visual recording devicesthe penalty to be imposed shall be increased by one-fold.

In the second paragraph, the unlawful disclosure of the images or sounds of another person’s private lifehas been regulated as a separate crime.Disclosure means giving information to third parties about the images and sounds recordings relating the private life of individuals. To be considered disclosure, it is not necessary to perform the disclosure publicly, providing information to only one person is sufficient. The act of disclosure is defined as a crime in this paragraph regardless of the lawfulness of the recording of the sounds and images. The important issue is whether other persons have been informed or not unlawfully of these audio-visual recordings. It must be noted that there are two different crimes if the disclosure has occurred after an unlawful audio-visual recording (134/1 and 134/2). The disclosure does not need to be open to public. However, if the disclosure has been realized through the press and broadcast the sanction to be imposed shall be the same.

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 by probable intent (Turkish Criminal Code, art. 21/2). Considering the term “unlawfully disclosure” in the second paragraph, unlawfulness has been specified. Unlawfulness is one of the elements of the offence. However, if the text of the law contains terms such as “unlawfully” (for ex. 134/2), unlawfulness is considered as part of the element of “typicality”. Where unlawfulness is considered as part of the element of typicality, the offender must know that his act is unlawful; so, he must act with direct intent. As a result, the offender must know that the act he is committing is unlawful and so he has to act through direct intent.

As a qualified element of this offense; by a public officer or due 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.

For this crime, the consent of the person concerned and performance of a provision of law can constituted through a finding of just cause. For example, according to the 140tharticle of the Turkish Criminal Procedure Code, that public areas or the workplaces of people can be monitored by technical means and that audio-visual recordings can be carried out in the presence of certain conditions. However, this article does not apply within homes. In this case, as the audio-visual recording will constitute a performance of the provision of law, this act will be considered as lawful.

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

Prosecution for this crime is bound to complaint (art. 139).

[1]By Article 81 of the Law no. 6352 dated 2 July 2012, the expression of “is punished with imprisonment from six months to two years, or imposed judicial fine”was amended as “is punished with imprisonment from one year to three years”;the expression of “the minimum limit of punishment to be imposed may not be less than one year”was amended as “the penalty to be imposed shall be increased by one fold”.

[2]Özbek-Kanbur-Doğan-Bacaksız-Tepe, p.560; Koca, p.103,104.

[3]Koca, p.106.

[4]Koca, p.109.