ABSTRACT
Law No. 7418, titled
“THE LAW AMENDMENT ON PRESS LAW AND SOME STATUTES”, published in the Official Gazette dated 18.10.2022 and numbered 31987, was adopted on 13.10.2022. Along with the 29th article of this law, to come after the 217th article of the Turkish Penal Code dated 26.09.2004 and numbered 5237; “The crime of publicly disseminating misleading information
Article 217/A- (1) A person who publicly disseminates false information regarding the internal and external security, public order and general health of the country in a way that is suitable for disturbing the public peace, just for the purpose of creating anxiety, fear or panic among the public, is liable for a period of one year to three years punishable by imprisonment.
(2) If the perpetrator commits the crime by concealing his/her true identity or within the framework of the activities of an organization, the penalty imposed according to the first paragraph is increased by half.”
was regulated as a new clause. The aforementioned clause shall be conducted within the scope of criminal law systematics and shall be evaluated in terms of the elements of the crime.
I. INTRODUCTION
With the rapid spread of the internet in recent years, access to the internet has become almost a fundamental right. As a result of this circumstance, information, news, and content have been shared and spread in society through digital platforms, a component of the internet world, at a speed that has never before been seen in human history. By all means, the dissemination, learning and discussion of information within the society is a right for individuals in a democratic society and in terms of media organizations, it is a duty; however, the uncontrolled and unpredictable transfer of inaccurate information to individuals, without giving them the chance to think and filter which is a basic and essential process for human beings, attempt on withholding them from making decisions with free will and leave people vulnerable to manipulation and misdirection and in a way prevent the individuals from comprehending their own selves. In the process of prevention of the aforementioned situation regarding the disinformation law; pluralism, tolerance and open-mindedness, which are the three cornerstones of a democratic society, shall be preserved and the transition of the society to a prosperous future shall be ensured. As we analyze the following hereinafter: The Law Proposal (2/4471) Amending the Press Law and Some Laws ofKahramanmaraş Deputy Ahmet Özdemir, Istanbul Deputy Feti Yıldız and 64 Deputies of the crime of “spreading misleading information” in TCK Article 217/A, we are going to try to shed light on the regulation by giving its justification in the “Media Commission and Justice Commission Reports” and then by addressing all these issues within the scope of criminal law systematics.
“Article 29 - Freedom of thought and opinion (expression) is at the forefront of the fundamental rights that contribute to the formation of a democratic society by enabling public discussion and opinion formation. The basis and ground of freedom of expression is described as the “market of ideas” in the doctrine. The most fundamental prerequisites for human development and, by extension, societal advancement are pluralism, tolerance, and open-mindedness, which are essential for a democratic society. These requirements form the basis of freedom of expression. Freedom of expression consists of three elements: the right to access news or information, the right to hold an opinion and the right to express one’s opinion, and it protects these areas. The right to access news or information; it enables individuals to freely use communication tools, to access news and information sources easily, to choose from among different views in the market of ideas, and thus to form theirown (original) thoughts and opinions. In essence, freedom of expression, which is one of the negative status rights, brings negative obligations for states. In addition, the level of fundamental rights and freedoms reached today, with the effect of the decisions of the European Court of Human Rights and the examination of individual applications by the Constitutional Court, also reveals the positive obligations of states in terms of freedom of expression. There is no doubt that this developing positive obligation will be to pave the way for and develop freedoms. Digital platforms, which are in great demand due to the spread of technological developments and the internet, have unpredictably increased the speed of dissemination of information or news, which can be described as more “content”, and considerably shortened the time of mind-filtering, analysis and evaluation of these contents. At this point, the anonymous environment provided by the internet has led to an increase in false or manipulative content. In particular, content created with special motives and spread in an organized manner or sharing via bot accounts rapidly increases disinformation on the internet. The fabricated content that is purposefully created in this way negatively affects product safety in the market of ideas, manipulates the opinion formation of individuals, and undermines the innocence of the democratic environment by encumbering free thought. As a result, there is a need to take action to ensure the security of news or information, as well as the conflict or competition of free and original ideas in a democratic environment, even as mechanisms and opportunities are being developed to make it easier for people to access news or information. With the article, it is regulated as a crime to publicly disseminate false information about the internal and external security, public order and general health of the country in a way that is suitable for disturbing the public peace, just for the purpose of creating anxiety, fear or panic among the people. It has been emphasized that this crime is a concrete danger crime by seeking that the act is suitable for “disrupting the public peace”. Additionally, it is sought as an additional element that the act is carried out with the intention of causing anxiety, fear, or panic among the public in order to avoid confusing these acts, which are referred to as “disinformation,” with the right of individuals to express or inform their individual opinions. It should be noted that the content subject to disinformation may be either false information or falsified information regarding the internal and external security, public order and general health of the country. There is no doubt that this crime, created within the scope of crimes against public peace, regulates a different area from the other crimes in the Chapter. In addition, if the crime is committed by hiding the real identity of the perpetrator or within the framework of the activity of an organization, it is foreseen as a reason for increasing the penalty”1.
II. PRESERVATION OF LEGAL VALUE BY THE CRIME OF PUBLIC DISSEMINATION OF DISINFORMATION
As it is recognized that an action will result in punishment if it is “accessory to disrupting the public peace,” it might be argued that the right of the general public to live in peace should be included in the scope of the regulation’s preservation of legal worth. The concept of public peace should be presumed as the social order in which the law is dominant in the relations between individuals. The sense of security that individuals have when they live in a lawful society based on peace should also be considered within the concept of public peace2.
Since the public commitment of the act in Article 217/A of the TCC is sought, the national public peace is the first thing that is protected. With the aforementioned regulation, both the general legal security and the public’s feeling about the preservation of the legal order are prioritized. Other forms of preservation of legal values are public order, protection of freedom of opinion and expression, establishment of the right to accurate information, ensuring legal security and combating disinformation.
These regulations aim to protect the legal existence of the state, which includes interests such as public order and peace. This includes safeguarding against elements that could undermine the internal order, public security, and peace, such as activities that incite or facilitate crime or organized crime. The Turkish Criminal Code’s concept of public peace refers to the social harmony, order, and security created by the legal norms used to regulate social life.
The aforementioned also could be understood from the title of the section to which the offense is included. As a matter of fact, the title of the fifth section of the third part of the Turkish Criminal Code, to which the crime of spreading misleading information to the public is included, is named as “Crimes against Public Peace”. As it could be interpreted from this, it could be argued that the preservation of legal value by the crimes regulated in the section and by the aforementioned crime is public peace.
III. BASIC ELEMENTS OF THE CRIME
A. Material Aspects
1. Action
a. In General
An act is a behavior dominated by the will of a person, intended to achieve a certain result and taking place in the external world3. A human behavior that constitutes an offense in accordance with the legal definition of the crime is considered as an act. The person who ensures that false information about the nation’s internal and external security, public order, and general health is publicly disseminated in a way that is suitable for upsetting the public peace in order to create anxiety, fear, or panic among the public constitutes the element of action under the law pertaining to the crime of publicly disseminating misleading information. In this context, the public dissemination of disinformation shall be considered as an action, and the element that shall be analyzed is whether the information is accurate.
In the preamble of the text of the article; what should be understood from the concept of” disinformation” remains to be unanswered, only concepts such as “lie”, “false” or “manipulative content”, “disinformation”, “ falsified content” are included, and it has been acknowledged that there is no explanation as to what should be presumed from the concept of “disinformation” which constitutes the material element of the crime4. Therefore, there have been discussions on what the concept of disinformation is and who determines whether a piece of information is invalid or not. In the trial phase, the court evaluates the characteristics of the particular case and determine whether a piece of information is invalid and conclude whether the act of public dissemination of disinformation has been committed. Thus, we presume that the deliberations regarding which information is invalid and inaccurate and how the determination process implemented are irrelevant. However, we think that there should be a parallelism between the concept of disinformation in the text of the article and the title of the crime of public dissemination of disinformation. Hereof, we deem that the concept of misleading information in the title should be replaced with the concept of disinformation. On the grounds that an accurate information can also be used to mislead the public as we perceived. Considering that the public can also be misinformed with accurate information that is not related to the subject that is not intended to be reflected, we think that the regulation of the title of the article as the crime of “public dissemination of disinformation” would be in accordance with the principle of “certainty”, which is one of the elements of the principle of “legality in crime and punishment”. Likewise, in this respect, we believe that it would be more appropriate to ensure parallelism between the title of the article and the text of the article in order to remove the ambiguity in the text of the article.
b. Publicity Element
In general, the dictionary meaning of “publicity” is as follows: “the fact that something is obvious and in the open, not hidden but in plain sight, the manifestation of everything, its outward appearance”5. In comparative law, the definition of publicity has been made and in Article 69 of the Austrian Criminal Code, publicity is defined as “actions that can be perceived directly by a large mass of people”, in Article 233 of the Brazilian Criminal Code, “public space, public place or place where everyone can look” is considered sufficient for publicity, and in Article 129 of the Argentine Criminal Code, after using the term “public place”, it is accepted that the act is public “even if the acts committed in private places are seen unintentionally”. Although our legal regulation does not include a clear definition of publicity, the concept of publicity was included in Article 153 of the (former) Turkish Criminal Code No. 765, which regulated the offense of incitement to disobey soldiers. The said article was as follows
The act:
1 - Through the press or any means of propaganda;
2 - In an open or public place and in the presence of more than one person;
3 - In a gathering that is not of a private nature in terms of the place of gathering or the number of participants or the subject and purpose of the gathering, shall be deemed to have been committed publicly in the application of the Criminal Code.”
There are various opinions in the doctrine regarding the concept of publicity. According to one opinion, the fact that the act is committed in a place where any person can see and hear constitutes publicity. As such,publicity does not necessarily indicate that the crime is performed in full view of others; rather, it occurs when the scene of the conduct is public and there is a chance that it may be witnessed6. According to this view, the Court of Appeal has ruled that “street”7, “in front of the police station”8, “in the garden of the complex”9, “in the police station which is a public place”10, “on the seaside”11, “courtroom”12, “court office”13, “furniture sales store”14, “village road”15, “waiting room of the dispensary”16, “roof of a house open on all sides”17, “police station building”18, “mosque”19, “waiting room of a doctor’s office”20, “field”21, “working room of a PTT officer”22, “garden of a house”23, “fountain”24, “factory buildings”25, “on the street”26, “front of a teacher’s office”27, “inside a walled courtyard”28 publicly; the court characterized places such as “prison”29, “inside the house”30, “prison ward”31, “ police vehicle”32, “garden belonging to the Gendarmerie Command”33, “inside the apartment building”34, “inside the house”35, “vineyard house”36, “PETKİM guesthouse”37, “inside the taxi”38, “room reserved for teachers’ rest and private study”39, “the room of the forestry district chief”40, “a potato field”41, “a patient’s room”42, “a place reserved for central officers and inspectors”43, “inside a prison”44, “an interrogation room”45 as non-public places46.
The Court of Appeal’s jurisprudence on the concept of publicity within the scope of the offense of defamation under Article 125 of the Turkish Criminal Code;
“Publicity entails that the insult can be heard, seen, and perceived by a large number of people at the same time. The victim’s honor and character are more likely to suffer harm as a result of the act being witnessed or open to the observation of others, and the public performance of the unlawful act is another reason for increasing the penalty due to publicity.
In the specific case under review, even though the defendant uses derogatory language while serving a sentence in prison, which isn’t a public place, it is illegal to increase his sentence due to publicity even though the conditions for the defendant weren’t met”47. In this context, the Court of Appeal seeks the existence of places that are considered to be public by the Court of Appeal itself, in order for the concept of publicity to be met.According to another opinion, the fact that the actions are not specific and can be perceived by more than one person should be taken as a basis in determining publicity. The place of the act is not important in determining the publicity48.
The basic criterion for publicity is that the act is not certain in terms of the conditions in which it took place and can be perceived by more than one person. Perception may be in the form of seeing or hearing. In order to speak of publicity, it is not necessary for the act to have been seen or heard. It is sufficient that it can be seen or heard. This is determined according to the nature of the specific case49. Publicity refers to the performance of the crime in a manner that allows an indefinite number of persons to see or hear the act50.
In our opinion, the nature of the place is irrelevant for the acceptance of publicity. The fact that the act can be perceived by many unspecified persons may lead to the fulfillment of the element of publicity. The constitutive element of the crime of spreading misleading information is that the perpetrator publicly spreads false information. As a result, in today’s world where the social structure and technology are changing rapidly and phenomena’s such as computers, internet, cell phones and social media are frequently pronounced, the concept of “publicity” should be further examined and analyzed in terms of the crime of spreading misleading information.
2. Object of the Crime
The object of the crime is the person or thing on which the typical act takes place, but the physical and material structure of the object or person may also reveal the object of the crime. Based on the short definition of the object of the crime, it will be possible to say that the object of the crime of public dissemination of disinformation is the inaccurate and invalid information related to the internal and external security, public order and public health of the country.
Article 217/A of the Turkish Criminal Code punishes the person who publicly disseminates disinformation on matters related to the internal and external security, public order and public health of the country with the intention of creating anxiety, fear or panic among the public in a manner that is conducive to disrupting public peace. In the offense under this paragraph, the act is based on untrue information that is publicly disseminated. When we examine the object of the crime as the person or thing on which the typical act takes place, it will be necessary to evaluate it as the untrue information that has been publicly disseminated and the public to which this untrue information has been disseminated.
In this context, finally, according to the effect they have on the object of the crime, a distinction is made between types of crimes as crimes of harm and crimes of danger.
In terms of the formation of a crime in terms of its legal definition, crimes are subject to a classification as damage crimes and danger crimes, based on the point that it is sufficient to cause danger in terms of the object of the crime committed or that it is necessary to cause damage to the object of the crime.
According to the classification made according to the effect they have on the object of the crime, the object of the damage crimes must be harmed and subjected to a real loss of value. What should be understood by the said damage and loss of value should be the loss of interest, negative, bad result and loss caused by the act committed.
On the other hand, in crimes of danger, it is sufficient to cause danger in terms of the object of the act indicated in the legal definition. In order for the type of crime to be considered committed, it is not necessary for the object to actually suffer damage in line with the act that constitutes an injustice. It is sufficient for the type of crime to be considered committed in terms of danger crimes to accept that it has objectively encountered the danger of harm and that there is the possibility of creating a danger of harm on the object of the crime.
In terms of the object of the crime of publicly disseminating misleading information, although the untrue information that has been publicly disseminated above has been evaluated as the public to which the untrue information has been disseminated, it is necessary to make an evaluation in such a way that the object of the crime is the peace of the public, as it will be obvious that the untrue information disseminated among the public will ultimately affect the peace of the public.
If the act committed objectively exposes the object of the crime to the danger of being harmed, it is referred to as a “danger crime”. In this context, when we look at the legal definition of the crime of publicly disseminating misleading information, the fact that the disruption of public peace is not considered as an element of the crime indicates that the crime should be included in the scope of danger crime in accordance with the search for the suitability to disrupt public peace, not as a crime of harm.
Danger crimes are divided into two as concrete danger crimes and abstract danger crimes. While crimes in which the judge investigates whether the acts in the legal definition actually create a danger on the object of the crime they are directed to are defined as concrete danger crimes, abstract danger crimes are defined as crime types in which the commission of the act in the legal definition of the crime is deemed sufficient for the occurrence of that crime.
It would be convenient to clarify the difference between concrete danger crimes and abstract danger crimes in order to understand the issue. In concrete danger offenses, the judge must investigate whether the object of the offense is actually endangered in the concrete incident that occurred, while in abstract danger offenses, there is no need to investigate the issue in question.In our opinion, when the crime of public dissemination of disinformation is included in the third section of the second book of special provisions, which is the section that was added in the Turkish Criminal Code, regulating crimes against society, and when the expression “in a way that is contributory to disrupting public peace” in the legal definition of the crime is evaluated within the scope of the justifications of article 170/1 and article 216 of the Turkish Criminal Code and the jurisprudence of the Court of Cassation, it will be necessary to state that it is a concrete danger crime.
Namely; in the first paragraph of the article text of the offense of intentionally endangering general security in article 170/1 of the Turkish Penal Code, the optional acts constituting this offense are determined as starting a fire; causing a building collapse, landslide, avalanche, flood or flood; firing a gun or using explosives without permission. However, in order to be sentenced for these acts, there must be a concrete danger to the life, health or property of persons. Thus, the offense in question is defined as a crime of concrete danger. The realization of the offense depends on the occurrence of a concrete danger. In other words, the act must be “committed in a manner that may be dangerous to the life, health or property of persons or in a manner that may create fear, anxiety or panic in persons”51. For instance, in the first paragraph of article 170 of the Turkish Criminal Code, the act of starting a fire is not sufficient for punishment. The judge will investigate whether a danger “in terms of the life, health or property of persons” arises as a result of this act or whether “fear, anxiety or panic is created in persons” by considering the characteristics of the concrete event. In addition, since an objectively real danger must have occurred on the object protected in concrete danger crimes, a causal link must also be established between the perpetrator’s action and the resulting danger52.
Regarding article 216 of the Turkish Criminal Code, the case law of the Court of Cassation on the object is as follows:
“While article 312 of the Turkish CriminalCode no. 765, which was in force on the date of the crime, requires ... “public incitement to enmity and hatred in a way that may be dangerous for public order”, article 216/1 of the Turkish Criminal Code no. 5237, which entered into force after the date of the crime, is regulated as “... the person who incites ... is punished .... in the event that a clear and imminent danger arises .... for this reason.” While in article 312 of the law no. 765, it was deemed sufficient for the act to be a crime only if it was said and written by the defendant, in the Turkish CriminalCode No. 5237, the aforementioned points are not deemed sufficient and the element of “... the emergence of a clear and imminent danger for this reason” has been sought. The effect and reaction of the act in the outside world is taken into consideration, and the act is considered a crime “in the event” of a clear and imminent danger. As clearly stated in the justification of the law, there is no doubt that the danger here is a concrete danger. In order for the offense in question to occur, the danger of deterioration of public security must arise based on concrete facts. In every case, the existence of concrete danger must be sought. Furthermore, an assessment should be made as to whether the limits of the freedom of thought and expression guaranteed by Articles 9 and 10 of the ECHR, which are considered part of our domestic law pursuant to articles 25, 26 and 90 of the Constitution, have been exceeded. Articles 26 of the Constitution of the Republic of Turkey and Article 10 of the ECHR emphasize that the freedom of expression includes the freedom to receive or impart news or information without interference by official authorities and that the freedom to receive and impart information is of particular importance. The European Court of Human Rights, in its many judgments emphasizing the freedom of expression of opinion guaranteed under Article 10, has almost unanimously recognized that this freedom is one of the cornerstones of a democratic society and constitutes one of the conditions for the progress and development of the individual and that this freedom may include not only news or ideas that are considered harmless, but also those that are contrary, irregular or alarming for the state or a part of the public, and that it is a requirement of open-mindedness that a democratic society cannot withdraw. In the concrete case, when the columns subject to the case are considered and evaluated as a whole, they do not contain violence, there is no reaction in the society due to these columns, there is no clear and imminent danger, for these reasons, they are within the scope of freedom of expression and the elements of the crime defined in Article 216 of the TCC No. 5237. The elements of the crime defined in Article 216 of the TCC No. 5237 did not occur and the defendant should be acquitted, but the decision to convict the defendant in the written form is contrary to the law, the appeals of the defendant’s defense counsel have been deemed appropriate in this respect, and for this reason, the judgment is reversed in accordance with Article 321 of the Code of Criminal Procedure No. 1412, which should be applied in accordance with Article 8/1 of the Law No. 5320 ... was decided”53.
The preamble to Article 216 of the Turkish Criminal Code (TCC) also contains similar explanations: “In this regard, the tendency in contemporary law to reduce abstract danger crimes has been taken into consideration and the area of use of fundamental rights and freedoms has been expanded. For this offense to occur, there must be a concrete factual danger of a deterioration in public security. This danger is a concrete danger. In determining whether this concrete danger has occurred, the result of the danger caused by the words and behaviors of the perpetrator must occur. The judge will determine whether this danger has been realized due to the expressions used, by showing the grounds. In this context, it must be established that the person’s words and behavior constitute an imminent danger in terms of disrupting public security. The words and behaviors of the person must have an effect on a segment of the public that justifies the concern that the acts subject to incitement will be committed. The criterion of “clear and present danger” must exist between freedom of expression and such dangerous offenses. Accordingly, speeches or opinions may be prohibited if they constitute a clear and present danger to society, and punishment cannot be imposed for the offense in question unless the existence of such a danger is clearly and concretely established”.
In this direction, we are of the opinion that the element sought in the expression “being conducive to disrupting public peace” in the definition of the crime in the newly added Article 217/A of the Turkish Criminal Code (TCC) will be evaluated within the scope of the crime of concrete danger. Whether the danger in concrete danger crimes should be considered as a result or as an objective condition of punishment is another issue that needs to be discussed.
In our opinion, in concrete danger crimes, the fact that the act performed in accordance with the legal description creates a concrete danger for the subject of the crime is understood as a condition of criminality, not as a constitutive element for these crimes54. Objective conditions of criminality are the conditions that may be in question after all the elements of the crime have been realized and which, if not realized, prevent the person from being punished for the act that constitutes injustice and crime55. Crimes that contain objective conditions of criminality are completed upon the fulfillment of the elements, and the crime is considered to have been committed at the time and place where the elements are completed, not the condition. However, as long as the objective condition of criminality is not fulfilled, the person cannot be held responsible for his/ her action56. In this type of crime, the emergence of a clear and imminent danger in terms of disruption of public peace is not a constituent element of the crime, but an objective condition of criminality, therefore, if no clear and imminent danger to public peace emerges after the act is committed, the perpetrator shall not be punished for the attempt.
In the measure of clear and present danger, clarity means that the danger is revealed in such a way that there is no room for doubt, and imminence means that the words used in the expression of opinion are close to the possibility of causing concrete danger, i.e. harm. In addition to the high probability of the occurrence of harm to the extent of inevitability, whether the expression of thought contains a clear and direct threat must also be checked separately in each concrete case57.
The legal definition of the offense of public dissemination of disinformation is that the dissemination of inaccurate information about the internal and external security, public order and public health of the country among the public is of a nature that is “capable of disrupting public peace”, in other words, it is required to be of a nature that would disrupt the peace of society and public peace. In this type of crime, by including the requirement that the false information disseminated publicly “must be capable of disrupting public peace”, the possibility of criticism, freedom of expression and the right to make political propaganda should not be harmed, and statements made for different purposes should be punished if they reveal a danger determined in terms of their real elements. In other words, in order to punish the public dissemination of false information in cases of necessity, it has been emphasized that it should be considered whether it is of a nature to cause a concrete danger, and that it should not be punished in cases where there is no “clear, imminent and present danger”, thus aiming to ensure and protect social protection and freedoms at the same time58.
In this context, we believe that the objective condition of criminality in line with the realization of the danger within the scope of the concrete danger offense, which is preferred by the Supreme Court both in accordance with Article 170/1 of the TCC and Article 216 of criminal code of the Republic of Turkey (TCC), shall be maintained in terms of Article 217/A of criminal code of the republic of Turkey (TCC), which includes more assurance for the defendant, is in line with the theoretical principles and the scope of freedom of expression and thought is expanded.
In the research article on the Crimes of Inciting or Denigrating the Public to Hatred and Enmity in the Context of Danger Crimes (TCC Art. 216) published in the Istanbul Law Journal, the contrary opinions on the subject;
As a matter of fact, the realization of a concrete danger sought in concrete danger crimes should be evaluated within the scope of material elements. However, it could be interpreted that the concrete danger could be considered within the scope of the result in a broad sense and this issue cannot be considered as an objective condition of criminality other than the elements of the crime, and as a result, this element is within the scope of the perpetrator’s intent. However, the issue of attempt to commit the crime of concrete danger is controversial and should be evaluated according to the concrete case, considering the existing attempt regulation.
The offenses regulated under § 130 of the German Criminal Code, which are generally referred to as “expression offenses”, are examples of different types of offenses. As mentioned above, § 130 II of the German Criminal Code is an example of an abstract danger offense, I and III are examples of an abstract-concrete danger offense, while § 130 IV of the German Criminal Code, which requires a breach of public peace, is a consequential offense and is an example of a damage offense.” it is worth noting that it is in the form of59.
3. Result
The consequence would only be considered as an element if it is included in the legal definition of the crime. Thus far, the understanding that “there is no crime without consequence” prevailing in the classical criminal theory has been discarded. In contemporary criminal law, instead of the theory of crime based on the injustice expressed by the result, a theory of crime based on the injustice expressed by the act has been developed60.
In this context, under the heading of the object of the crime in the material elements; it has been revealed that the crime of public dissemination of disinformation is a concrete danger crime, and the realization of the danger will be evaluated as an objective condition of criminality, not as a result of the material elements of the crime.
4. Perpetrator
The perpetrator is in Article 37 of the Turkish Criminal Code defined as “Each person who performs the act together in the legal definition of the crime is responsible as the perpetrator.” In other words, the person who dominates the act within the legal scope of the crime and commits the injustice in accordance with the legal definition is known as the perpetrator. In terms of the expression “the person who publicly disseminates in a way that is suitable for disturbing the public peace” in the crime of public dissemination of disinformation, which is the crime that was mentioned and explained; it has been revealed that it is a crime that can be committed by anyone. From this point of view, every real person who has the ability to act can be the perpetrator of the crime in question.
It should also be noted that in accordance with the articles of the law enacted in 18.10.2022, some regulations were also introduced to the Press Law No. 5187. According to the amendment to the law, Annex 3 and Annex 6 articles added to the Press Law No. 5187 are as follows:
“Conditions sought for persons who can obtain a press card Annex Article 3-;
In order for those who request a press card to apply;
...ç) Even if the periods specified in Article 53 of the Turkish Criminal Code dated 26/9/2004 and numbered 5237 have passed; imprisonment for five years or more for an intentionally committed crime or for blackmail, theft, forgery, fraud, breach of trust, perjury, perjury, slander, fabrication, obscenity, prostitution, fraudulent bankruptcy, embezzlement, extortion, bribery, smuggling, bid rigging, fraudulent execution, laundering of property values arising from crime, crimes against sexual immunity, crimes against public peace, crimes against the constitutional order and its functioning, crimes against national defense, crimes against state secrets and espionage not be convicted of crimes
d) Have not been convicted for the terrorist crimes listed in Article 3 of the Anti-Terrorism Law and crimes committed with the aim of terrorism listed in Article 4, or for the crimes specified in Article 6, in accordance with Article 4 of the Law on the Prevention of Financing of Terrorism dated 7/2/2013 and numbered 6415…
Circumstances in which the press card will be canceled Annex Article 6
If it is understood that the press card holder does not have the qualifications specified in the additional article 3 or has subsequently lost these qualifications, the press card shall be canceled by the Presidency.
” In this context, it should be noted that if the perpetrator of the crime of spreading misleading information to the public in question is the owner of the press card, the press card will be canceled, and if he is not the owner of the press card, he will not be able to get a press card.
5. Victim
Every crime has a perpetrator, as well as a victim. There can be no crime without a victim. Victim, in general, means “the person who has been wronged due to the act committed”, “the person whom a crime has been committed against”.
As a rule, the victim of “crimes against society”, which is regulated in the third part of the second book of the TCC, entitled Special Provisions, is everyone who makes up the society.
Another point to be mentioned is that the victim of the crime is only a real person. This person is the person who was alive when the criminal act was committed. Apart from human beings, institutions and bodies such as family, state, legal person, groups of individuals, and the community of states may not be victims of crime, even if they may be “harmed by crime”. In the last case, the concept of victim and victim of crime are different from each other. Although the victim is also the person who has been harmed by the commission of the crime, the person who has been harmed by the crime may not always be the person who has been victimized due to the commission of the crime. In other words, legal persons or institutions may not be victims of the crime, but may be harmed by the crime. In this respect, while the victim of the crime of publicly disseminating misleading information is everyone who constitutes the society, the person who suffers from the crime may be legal persons and institutions.
B. Moral Aspect
The crime of publicly disseminating misleading information, regulated in Article 217/A of the TCC, must be committed with the sole motive of creating anxiety, fear or panic among the public. Thus, for the occurrence of the crime with the article, it is necessary to act with a special intent. Since the perpetrator acts with the special intention of creating anxiety, fear or panic among the public, this crime is a crime committed with a special intent. General intent is not enough. If the perpetrator does not act just to create anxiety, fear or panic among the public, but acts for other purposes, then the crime of publicly disseminating misleading information will not occur, but another crime may occur if the conditions exist.
At the same time, since this crime is a crime that can be committed with a special intent, it can be committed with a direct intent. It is not possible to commit it with possible intent or negligence.
In addition, it should be known that the information spread as a complementary element of the motive of creating anxiety, fear or panic among the people in question is untrue. The dissemination of information that is not known to be inaccurate with the aim of creating anxiety, fear or panic among the public will not constitute a crime, but will consist of the dissemination of information that is not contrary to the truth, that is, real information, which is one of the elements of the crime, with the motive, which is the moral aspect of the crime. However, it can be said that the moral element of the crime occurs when the information that is known to be untrue is publicly disseminated with the sole motive of causing anxiety, fear or panic among the public. In cases where it is not known that the disseminated information is untrue, it cannot be said that the perpetrator acted deliberately and that the crime occurred in this respect.
C. Unlawfulness Element
a. Generally
Unlawfulness, in general terms, means to oppose the law (right), to be in conflict with it. Unlawfulness as an element of the crime means that the act committed is not permissible by the legal order, and the act is in contradiction and conflict with the entire legal order61. Unlawfulness is a holistic concept.
It can be said that the typical act in accordance with the legal definition of the crime is unlawful, and accordingly, typicality is a presumption of illegality. However, it should be ensured that there are no legal reasons for the crime to occur. In other words, after determining the type-appropriate action, it should be investigated whether there is a reason for compliance with the law that makes the typical action lawful, not a special examination of the illegality of this action. If there is a reason for compliance with the law, the presumption of illegality disappears and the act will be considered lawful. The reasons that make an action lawful are called “reasons for compliance with the law”. In this context, exercise of the right, freedom of expression, freedom of expression and dissemination of thought, the right of the press to inform, and the freedom to receive information and learning will be examined for the following reasons for compliance with the law in terms of the crime of publicly disseminating misleading information.
b. Exercise of the Right
Paragraph 1 of Article 26 of the TCC states that no one who uses his right is punished and constitutes the legal basis for the exercise of the right, which is a general reason for compliance. If the legal order has given individuals a certain right in any matter and an action has been taken within the limits of this right, it is no longer possible to evaluate the acts that constitute the exercise of the right as unlawful62. Even if the act of the person exercising her right causes harm to others, the legal order must prioritize the exercise of the right. Because the legal order that allows an act to be committed cannot at the same time prohibit it63.
Right refers to the power whose framework is determined by the legal order and which gives the individual the ability to determine their own destiny and shape their own environment with their free will64. The use of a subjective right that can be used directly by the person, the use of this right within the limits of the reason for recognition, and the existence of a causal link between the act committed and the type appropriate will constitute a reason for lawfulness. In this context, it will be stated that in connection with the crime of publicly disseminating misleading information, the rights regarding freedom of thought, freedom of expression and dissemination, the right of the press to inform, the freedom to receive and learn are in accordance with the law.
c. Freedom of Thought
In a state of law, it may be necessary to include provisions such as “the crime of publicly disseminating misleading information” or similar provisions in the criminal code in order to establish the legal order in a healthy manner and to ensure that the legal security and social peace and order are maintained without interruption. Law cannot and should not be a spectator to the public dissemination of false information with the aim of creating anxiety, fear or panic in a way that will disrupt public peace and order between people belonging to different social classes, races, religions, sects or regions.
Thinking is a function, an activity of the human brain. Thought, on the other hand, is the products of this activity, that is, the propositions or statements expressed. When freedom of thought is mentioned, it is necessary to understand together the freedom of information and learning, which allows the formation of thought, the freedom of opinion, which means not to be condemned for thoughts and opinions formed in the environment where this freedom is provided,and thus the freedom to express and disseminate the thought. These three aspects are also considered as the basic elements of freedom of thought65.
Exposure to a sanction for ideas transmitted to the outside world through the lips or the tips of the fingers becomes when these expressions exceed the limits of the “freedom of thought” guaranteed in Articles 9 and 10 of the European Convention on Human Rights, which is considered a part of our domestic law pursuant to Articles 25 and 26 of the Constitution and the last paragraph of Article 90 of the Constitution. If the limits of freedom of thought have not been exceeded, and those expressed have remained within the free space provided to people with this freedom, they are now under the protection of positive law and the state, far from punishing these people, has to ensure the freedom to express these ideas66. With the criminal law terminology, in such cases, there will be a reason for compliance with the law within the scope of the enforcement of the right.
d. Freedom to Express and Disseminate one’s Thought
Another dispute which requires to be addressed is the determination of the type of crime in terms of freedom of expression. In accordance with that, should freedom of expression be considered as a situation that impedes the right to access news or information by forming “disinformation”, or does the fact that news is prevented under the name of disinformation by a type of crime generates an interference in terms of freedom of expression?
Freedom of expression refers to the phase of expression of thought67. The ability of thought to execute its function and its transition from a static state to a dynamic state depends on its expression68. The concept of explanation which was priorly mentioned; also includes actions such as defending ideas, telling others, disseminating, suggesting and advising, and propaganda. In that case, the fact that an inaccurate information has been expressed publicly, even if it is an opinion, requires to be elucidated in a way, in order for the crime of publicly spreading misleading information to come forward. Regarding the
freedom of expression and dissemination of thought, which is one of the reasons for compliance with the law, in accordance with the decision of the Criminal General Assembly;
“There are comprehensive regulations on freedom of thought both in international law and in national law.
Article 19 of the United Nations Universal Declaration of Human Rights of 10 December 1948;
‘Everyone has the right to freedom of opinion and expression; aforementioned right consists of the freedom not to be disrupted by one’s opinions and to seek, receive and disseminate information and opinions by any means, regardless of national borders.
Article 19 of the United Nations International Covenant on Civil and Political Rights of 16 December 1966; ‘1- Everyone has the right to freedom of speech; aforementioned right consists of the freedom to research, receive and transmit all kinds of news and ideas, whether in oral, written, printed or artistic form, or by any other chosen means, regardless of country borders. Article 10 para. 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms of 4 December 1950;
‘Everyone has the freedom to express and articulate their point of views. Aforementioned right consists freedom of opinion and freedom to obtain and transmit information or ideas without interference by public authorities and regardless of perimeters.”
is considered within the scope of the provision, In conjunction with this;
Conference on Security and Cooperation in Europe dated 21 November 1990, in the Paris Charter for a New Europe;
‘Human rights and fundamental freedoms are inalienable rights that all human beings acquire at birth and are guaranteed by law. Their preservation and advancement are the primary duty of the state. Respect for them constitutes the main security against a tyrannical state. Their observance and full implementation are the foundation of freedom, justice and peace.’
‘…The basis of democracy is respect for hu - man beings and the rule of law. Democracy is the best guarantee of freedom of expres - sion, tolerance towards all segments of soci - ety and equality of opportunity for all.’
In paragraph 1 of Article II-71 of the Treaty Establishing a Constitution for Europe of 13 October 2004;
‘Everyone has the right to freedom of ex - pression. Aforementioned right consists the freedom to hold an opinion and to obtain and transmit news and ideas regardless of perimeters and without interference by pub - lic authorities.
are taken into account within the scope of precedents. Article 13 of the Constitution of the Republic of Turkey;
‘Fundamental rights and freedoms may only be defined and restricted by law, without vi - olating on their essence, depending on the reasons detailed in the relevant articles of the Constitution. These restrictions cannot be contrary to the word and spirit of the Constitution, the requirements of the demo - cratic social order and the secular Republic, and the principle of proportionality.’
provision, article 14;
“None of the rights and freedoms contained in the Constitution may be used in the form of acts aimed at disrupting the indivisible integrity of the State with its territory and nation, and abolishing the democratic and secular Republic based on human rights.
None of the provisions of the Constitution may be interpreted in a way that makes it vi - able for the State or individuals to execute or implement an activity aimed at destroying the fundamental rights and freedoms recog - nized by the Constitution or restricting them more broadly than the one specified in the Constitution.
provision, article 25;
“Everyone has the freedom of thought and opinion.” “No one could be compelled to express his thoughts and convictions for whatever reason and purpose; cannot be condemned or denounced for his thoughts and convictions.”
provision, and Article 26,
“Everyone has the right to express and disseminate their thoughts and opinions individually or collectively through words, writings, pictures and/or other means. Aforementioned freedom consists the freedom to obtain or transmit information or ideas without the interference of official authorities. The provision of this paragraph does not prevent broadcasts made by radio, television, cinema or similar means from being associated with the permission system.
The practice of these freedoms may be limited to the purposes of the protection within the scope of the law or the proper performance of the judicial function such as national security, public order, public security, the fundamental characteristics of the Republic and the protection of the indivisible integrity of the State with its territory and nation, the prevention of crimes, the punishment of criminals, the failure to disclose information duly designated as a state secret, the reputation or rights of others, their private and family life and the matters of professional secrecy.
Regulatory provisions regarding the practice of means on disseminating news and thoughts are not considered to limit the freedom of expressing and disseminating thoughts, provided that they do not prevent their publication.
The forms, conditions and procedures that are applied in exercising the right to freedom of expression and dissemination of thought shall be regulated by law.”
has the effect.
When the stated norms are evaluated together; freedom, as necessary measures in a democratic society; to preserve national security, territorial integrity, public safety and order, to prevent crime, to preserve health and morals, to preserve the reputation and rights of others, to prevent the dissemination of news that should be kept confidential, or to preserve the authority or impartiality of the judiciary. It is understood that it shall be subjected to some form conditions, limitations and sanctions prescribed by law. However, the regulations regarding the restriction of freedom of expression should be interpreted as narrowly as possible; there is a significant societal need or necessity for the restriction, such limitation is made to achieve a legitimate purpose, the opinion that the limitation should never be excessive and that the limitation should not harm individual and social development in any case and condition has been widely accepted.
In this context ; “In today’s liberal democracies, freedom of expression is protected in a wide range, apart from the narrowing restrictions, and individuals and societies benefit from the rights provided by this freedom in the way”.
In this context, the crime of publicly disseminating misleading information requires to be evaluated by examining its limits within the scope of freedom of expression and dissemination of thought among the reasons of compliance with the law.
e. Right of the Press to Report
In terms of the crime of publicly disseminating misleading information to the public, the right of the press to inform should be examined and analyzed among the reasons for compliance with the law. The concept of press is defined as “the whole of written publications such as newspapers and magazines published at certain times, printing press”69. In our opinion, it would be more appropriate to examine the meaning, scope and limits of freedom of the press as a whole with the emergence of communication tools such as radio, television and cinema. In this context, according to the Court of Cassation, in order for the right to inform and criticize, which is the source of Article 28 of the Constitution, which is among the grounds of lawfulness in crimes committed through the press within the scope of the exercise of the right, to come to the agenda, the press statement must be real and up-to-date, there must be public interest and benefit in its issuance, and there must be an intellectual link between the event and the narration of the event. Failure to fulfill even one of these elements eliminates the right to inform and criticize and renders the act unlawful70.
In order for a news report or criticism to be considered within the scope of freedom of the press and expression, it must first be true71. It would be appropriate to evaluate the fact that untrue, completely fabricated news, comments or information may constitute the crime of publicly disseminating misleading information within the context of the crime of defamation within the scope of the jurisprudence of the Court of Cassation, which states that the press has exceeded its right to inform and criticize and has become unlawful72. It should be stated that the reality within the scope of this right is not absolute reality but visible reality. The concept of apparent reality plays an important role within the scope of the press’s right to inform and criticize. It is not necessary for the person making the news to investigate in all details and to verify the event one hundred percent, but he/ she must have reached the conclusion that this matter is true by making all possible investigations73. In this respect, the case law of the Court of Cassation is as follows;
“The publications subject to the lawsuit were made on the investigations against the plaintiffs, and the facts mentioned in the news article constitute the subject of the investigation. In this case, the publications are in accordance with the apparent truth. The fact that the allegations against the plaintiffs are not true as a result of the investigation does not eliminate the apparent reality and does not require the defendant to be held responsible for the news. On the other hand, considering the importance and value of the subject matter, it should be accepted that intellectual link is preserved. In the face of the reasons explained, it should be adopted that the balance of conflicting interests has not deteriorated against the plaintiffs and the reason for compliance with the law has been realized in terms of the defendant. The court’s partial acceptance of the request instead of its full rejection was not deemed appropriate and required reversal”74.
As emphasized in many judgments of the European Court of Human Rights in relation to Article 10 of the European Convention on Human Rights, freedom of expression is one of the fundamental foundations of a democratic society and constitutes one of the basic conditions for the progress of society and theself-improvement of every individual. In the context of freedom of the press, with regard to the publication of rumors and allegations that journalists cannot prove, the European Court of Human Rights considers the veracity requirement to be an unreasonable and even impossible demand, and states that if the press is confronted with the obligation to publish only fully proven facts, almost nothing can be published, which would harm the freedom of the press...
... And the defendant broadcasting organization made a publication inspired by this article. In this case, considering that the publication is in accordance with the current and visible reality, that it is within the scope of the right of the society to obtain information and the right of the press to inform, and that the event is conveyed in a way to attract the attention of the reader as required by the journalistic technique, it is necessary to revoke the decision, since it is not in accordance with the procedure and the law to make a decision in the written manner”75.
Another condition of the right of the press to report and criticize is that the news should also be up-to-date. If outdated, previously discussed in the media, outdated issues are brought back to the agenda, the aim of creating anxiety, fear or panic among the public again with untrue information will come to the agenda rather than the exercise of the right. There must be public interest and benefit in the provision of the news, and it must not be conducive to disrupting public peace. The right of the press to inform and criticize cannot be mentioned when it goes beyond the information required by the public interest and acts in a manner that is conducive to disrupting public peace and solely for the purpose of creating anxiety, fear or panic among the public. The news and the way it’s presented should not lead to different connotations. In other words, there should be an intellectual link between the news and the value judgments used, and there should be no departure from reporting news.
f. Freedom to Receive and Impart Information
Within the scope of the freedom to receive and impart information, which concerns the period before the formation of thought, it is the reason for compliance with the law that enables people to access information sources in a free environment, to make choicesbetween information and to draw the results they want from them, and to prepare the ground for this situation. Freedom to receive and impart information, which also appears as the right of information, in a way provides the raw material for thought. If this data and information remains limited, thinking activity will also remain limited and will not develop in this direction.
Article 26 of the Constitution and Article 10 of the ECHR show the importance given to the freedom to receive and impart information and information by stating that the freedom of thought includes the freedom to receive and impart information or ideas without interference by official authorities. In this respect, the case law of the Court of Cassation is as follows;
“Considering that what is essential is the freedom of the press and the freedom to receive news, it is necessary to be extremely careful about the extent to which these freedoms are restricted; otherwise, the restriction to be made may touch the essence of the right and may create the danger that the freedom of the press and the freedom to receive news may lose its meaning. Therefore, while making regulations limiting the freedom of the press and the freedom of information, the criteria of “prohibition of touching the essence” and “the principle of proportionality” and “the requirements of the democratic social order”, which are expressed in Article 13 of the Constitution, should not be overlooked in any way.
Criminal law instruments may sometimes be used to restrict freedom of the press and freedom of information. However, considering the nature of criminal law instruments, it should not be overlooked that, due to the indispensability of freedom of the press for a democratic society, recourse to criminal law instruments should be considered as an “ultima ratio” (last resort). The system of “self-monitoring of the press”, which was first introduced in Sweden in 1916, emerged as a product of the ideas of preventing the state authority from interfering with the press and creating a press that is respected by the public opinion. In this sense;
The use of criminal law tools should only be considered in cases where other control mechanisms fail to achieve results.It is necessary to prevent the abuse of free - dom of the press, and the abuse of freedom of the press often manifests itself as a vio - lation of a criminal norm and emerges as a “press crime”76 . In terms of the crime of publicly dissemi - nating misleading information, there are opinions that the public’s right to receive and learn news limits the thinking activity in a way, while on the other hand, the dis - information environment that will occur as a result of the dissemination of untrue infor - mation constitutes an obstacle to the right to receive and learn at the point of accessing accurate information. The last situation is the fact that the right to information and learning should be examined among the reasons for compliance with the law in accordance with the evaluations to be made according to the characteristics of the concrete event in terms of the crime in question.
IV. QUALIFIED ELEMENTS
After the basic form of a crime is regulated, the elements that require an increase or de - crease in the punishment according to the basic form are called qualified elements. Qualified elements may arise from the title of the perpetrator or the victim, the relationship between the perpetrator and the victim, the motive or purpose pursued by the commis - sion of the act, the place and time of the act, or a feature of the object of the crime.
In the second paragraph of the crime of publicly disseminating misleading information regulated in Article 217/A of the Turkish Criminal Code (TCC), a qualified element has been regulated to increase the penalty in the form of “(2) If the perpetrator commits the crime by concealing his/ her real identity or within the scope of the activity of an organi - zation, the penalty imposed according to the first paragraph is increased by half.” In this context, those who publicly disseminate un - true information about the internal and exter - nal security, public order and public health of the country in a way that is conducive to dis - rupting public peace, in order to create anx - iety, fear or panic among the public, in the case of concealing their identity or within the scope of the activities of an organization, will be deemed to have committed the qualified form of the crime in question and the penalty will be increased by half.Another issue to be mentioned is Article 218 of the TCC, which reads as follows;
“ARTICLE 218.- (1) (Amended: 29.06.2005- 5377/25.Art.) If the offenses defined in the above articles are committed through the press and broadcasting, the penalty to be imposed shall be increased by half. Howev - er, expressions of opinion that do not exceed the limits of news reporting and made for the purpose of criticism shall not constitute a crime.”
Although this article is in the nature of a com - mon provision and constitutes a qualified el - ement regarding the increase of the penalty in case the crime is committed through the press and broadcasting, on the other hand, it points to the reasons of conformity with the law by stating in the last sentence that state - ments of thought that do not exceed the lim - its of reporting and made for the purpose of criticism will not constitute a crime. It should be noted that the crime will not occur in the event that the reason for compliance with the law is realized, and if this act is committed through the press and publication without any reason for compliance with the law, the penalty will be increased due to the presence of a qualified element.
V. FAULT
Fault is the judgement of condemnation against the perpetrator for going against the law and choosing injustice when he had the opportunity to act in accordance with the law. The reason for such condemnation is that the perpetrator, although expected to be able to act in accordance with the law and to act in accordance with the law, chooses unlawful behaviour and does not act in a manner expected by the law.
In this context, it can be said that the realiza - tion of the material, moral and unlawfulness elements will be necessary and sufficient for the occurrence of the offence, together with the fact that paragraph 4 of Article 223 of the Code of Criminal Procedure constitutes a positive basis that fault is not an element of the offence. In the last case, a faultless perpe - trator may also commit an injustice, and the realization of the injustice is a necessary con - dition for the perpetrator to be punished, but not a sufficient condition. The perpetrator is also required to be at fault.
A person who is capable of fault can be said to be at fault. The ability to fault can be defined as the ability to perceive the legal meaning and consequences of the act com - mitted by a person and the ability to direct one’s behavior. Based on the definition of the ability to fault, it can be said that the ability to perceive and the ability to will constitute the elements of fault.
In the last case, in order for a person to be condemned for the act he/she has commit - ted, in other words, in order for a judgement of fault to be made about the person in ques - tion, the conditions of having the ability to fault, which are the elements of the ability to perceive and the ability to will, the awareness of injustice and the conditions that abolish the fault should not occur in the concrete event must be fulfilled together.
In this context, we think that the issues that should be examined regarding the fault relat - ed to the offence of publicly disseminating misleading information added to the TC - C(Turkish Criminal Code) are the minority of age and alcohol or drug addiction.
Namely, with the easy accessibility of social media today, there are many underage indi - viduals who are likely to ensure the public dissemination of misleading information, and there will be doubts about the correct interpretation of untrue information due to the small age, and in this case, the element of fault should be examined in order to clarify the issue.
The effect of minority on the fault of the per - son varies according to the age of the per - son. In the TCC, three different groups have been formed in terms of minority of age. Arti - cle 31 of the TCC;
“(1) Children who have not completed the age of twelve at the time of committing the act are not criminally liable. They may not be prosecuted criminally; however, child-specific security measures may be applied.
(2) (Amended: 29/6/2005 - 5377/5 Art.) Those who have completed the age of twelve but have not completed the age of fifteen at the time of committing the act are not crimi - nally liable if they are unable to perceive the legal meaning and consequences of the act committed or if their ability to direct their be - havior is not sufficiently developed. In the case of the existence of the ability to perceive the legal meaning and consequences of the act committed and to direct their behavior in relation to this act, the crime is committed against these persons, ...
(3) (Amended: 29/6/2005 - 5377/5 Art.) The offence is committed against persons who have completed the age of fifteen but have not completed the age of eighteen at the time of committing the act...”
is regulated as follows. This means that even an eleven-year-old child can be the perpetra - tor of the offence under Article 217/A of the TCC. However, since children under the age of twelve are not criminally liable pursuant to Article 31/1 of the TCC, the minority of age, which is one of the reasons that remove the fault, will come to the agenda. Even if the of - fence of publicly disseminating misleading information will occur in terms of minors who provide the dissemination of untrue informa -tion, the fault will be eliminated by the minori - ty of age, which is a reason that removes the fault, and a criminal responsibility cannot be mentioned.
Another issue, alcohol or drugs, also affects the person’s ability to perceive and willpow - er. For this reason, the criminal responsibility of those who use alcohol or drugs in case of committing an offence is usually regulated separately in the laws. First of all, alcohol and drug addiction must be related to the of - fence. The evaluation to be made afterwards will vary according to whether the addiction is physiological or psychological, in other words, according to whether the alcohol or drugs were taken involuntarily (unintention - ally) or voluntarily (intentionally) when para - graphs 1 and 2 of Article 34 of the TCC are considered together.
In the crime of publicly disseminating mis - leading information, which is the crime we examined within the scope of Article 217/A of the TCC, it is accepted that a person who commits the crime by fulfilling the elements in the legal definition regarding the dissem - ination of false information is not criminally responsible if he/she drinks alcohol against his/ her will. In other words, the involuntary intake of alcohol or drugs and the inability to perceive the legal meaning and conse - quences of the act committed by the person or the significant decrease in the ability to direct their behavior in relation to this act will affect the ability of fault and will remove criminal responsibility.
On the other hand, in case of voluntary in - take of alcohol or drugs, whether the offence committed while under the influence of the said substances is committed intentionally or negligently should be examined according to the way of realization and general rules of each concrete event, and there are different opinions on this issue. In our opinion, in the offence of publicly disseminating misleading information committed while under the influ - ence of alcohol or drugs taken voluntarily, the fault will not be removed, and it will be necessary to examine whether the act was committed with a special motive. If it can be established that the offence was committed with the sole intention to cause anxiety, fear or panic among the public, the perpetrator who acted under the influence of alcohol or drugs taken voluntarily shall be criminally li - able for the offence committed.
VI. ERROR
In the theory of crime, error is divided into two as error that removes intent and error that affects culpability. In terms of Article 217/A of the TCC, which is the offence we are examining, if it is not known that the informa - tion that is misleading to the public and pub - licly disseminated is contrary to the truth, the error that removes the intention regulated in Article 30/1 of the TCC will be in question.
If the person has committed the act in the legal definition of the offence and does not know that the act in question constitutes an injustice, to explain, if he knows that the untrue information he has publicly dissemi - nated is untrue, but does not know that it is a crime to publicly disseminate untrue infor - mation that is misleading to the public, it will be necessary to talk about the injustice mis - take regulated in Article 30/4 of the TCC, that is, as an exception to the rule that ignorance of the law is not an excuse, it will be neces - sary to consider it as a mistake that removes the fault. The inevitability of the error is one of the conditions required for the error that removes the fault. In terms of the offence we have examined, it is not expected that the error that removes the fault, which is Article 30/4 of the TCC, will be applied. Because Article 217/A of the TCC indicates that it is sufficient for a person to know that the act in the offence of publicly disseminating mis - leading information is not a crime, but that the act in question is an unjust act. In other words, since it can be said that the person who publicly disseminates false information acts with the consciousness of injustice, it will not be possible to raise the injustice mistake within the scope of the mistake that removes the fault.
In the last case, since there is no inevitability condition in terms of the error that removes the intention pursuant to Article 30/1 of the TCC, when it is not known that the informa - tion that is misleading to the public and pub - licly disseminated is contrary to the truth, the intention will be removed and the negligent responsibility will be reserved. However, as stated above, since the way this offence is committed with negligence is not regulated in the law, the elements of the offence will not occur and it will not be possible to punish the perpetrator for his act.
VII. SPECIAL FORMS OF THE OFFENCE
A. Attempt
In order to punish the offence of publicly disseminating misleading information regulated in Article 217/A of the TCC, the public dissemination of untrue information must pose a clear and imminent danger in terms of the deterioration of public peace, where the emergence of clear and imminent danger is the objective punishment condition of the offence. For this reason, the offence is punishable if this danger has arisen, while the perpetrator cannot be punished if this situation does not occur. For this reason, it is not possible to attempt the offence regulated in the article77.
B. Complicity
In terms of the offence of publicly disseminating misleading information to the public, it is necessary to make an assessment regarding the concept of publicity and the dissemination of the offence. In this direction, considering the speed of use of social media, its spreading power and difficulty of follow-up, the methods of “retweet” and “like” in the social media application called Twitter, which is widely used today, will be subject to examination under the title of participation in crime in terms of not tolerating the commission of crime by using social media as a means.
The activity of retweeting on the social media sharing site Twitter is to share another Twitter user’s post with your own followers. Therefore, a retweet is not a type of sharing said by the user himself/ herself, but a second-person statement that is shared indirectly, that is, in a way that cannot be directly attributed to the person, in order to be presented to the information of Twitter users. Retweet activity can be performed for any post that is liked or disliked, considered true or false. Presenting a statement that does not belong to the retweeter to the information of third parties will not directly put the sharer in the status of “perpetrator”78. On the other hand, in thedecision of the 18th Criminal Chamber of the Court of Cassation dated 07.12.2015, numbered 2015/10377 Main and 2015/12777 Decision, it was decided that the offence of insult occurred with the retweet activity79.
In this context, in terms of the offence of publicly disseminating misleading information, it is obvious that the retweeter will directly affect the public’s right to information. In our opinion, it would not be correct to accept that the offence in question is automatically realized with the retweet, on the grounds that the sharing of a post that performs the act stipulated in the material element of the offence of publicly disseminating misleading information is later shared by someone else, i.e. retweeting, in the first stage, retweeting is a method of sharing and dissemination. It is necessary to examine separately and repeatedly whether the retweeter is aware of the intent to commit an offence and whether the material elements of the offence of publicly disseminating misleading information are formed in the characteristics of the concrete event. In cases where it is understood that the purpose of the retweet activity is not to share or disseminate the thought or opinion in the field of social media, but only to like or mark or tag the thought or opinion, it cannot be considered as the offence of publicly disseminating misleading information. However, if the person or persons who publicly post on social media with such methods with the sole purpose of creating anxiety, fear or panic among the public allow the direct or indirect dissemination of false information subject to the crime, in this case, it may be mentioned that the offence of publicly disseminating misleading information has occurred in terms of the person or persons who made the post. On the other hand, if it can be proved that a group acts together in a way that contributes to the public dissemination of information that is known to be untrue with the sole purpose of creating anxiety, fear or panic among the public, joint perpetration will have to be evaluated.
The like/ liking activity on the social media sharing site called Twitter consists of liking or marking the post. Decree of the 4th Criminal Chamber of the Court of Cassation dated 17.11.2014, numbered 2013/5598 Main and 2014/33171 Decision is as follows;
“Liking an insulting post does not constitute the elements of the offence of defamation unless it is shared on the internet or transferred to others”80.
In this context, in terms of the offence of publicly disseminating misleading information, it is understood that the elements of the offence will not occur in cases where the like activity does not include the purpose of sharing, transferring or disseminating to others on social media.
C. Concurrence
We believe that in some cases where the act, which is included in the material elements of the crime, causes the crime of publicly disseminating misleading information, the crime of slander, which is included in Article 267 of the TCC, may also occur. In this case, it should be stated that the provisions of different kinds of intellectual gathering will be applied and the perpetrator will be sanctioned for the crime of slander, which has a heavy penalty.
To mention that the crime of spreading misleading information to the public is committed with at least three people and a group that we can describe as a criminal organization with the aim of committing a crime, Article 220/4 of the TCC; pursuant to “In the event that a crime is committed within the framework of the activities of the organization, a penalty will also be imposed for these crimes”, it will be necessary to establish a provision both from Article 220 of the TCC and from the 2nd paragraph of Article 217/A of the TCC within the scope of the organization’s activities.
VIII. SANCTION
Anyone who commits the crime of publicly disseminating false information in order to create anxiety, fear or panic among the public, which is regulated in the first paragraph of Article 217/A of the TCC, is sentenced to imprisonment from one year to three years.
If the perpetrator is given a prison sentence of less than two years, the institution of postponing the announcement of the verdict regulated in Article 231 of the TCPC may come to the agenda. If this institution is not implemented and the perpetrator is sentenced to 2 years or less in prison, the prison sentence given in accordance with Article 51 of the Turkish Criminal Code may be postponed.
According to the second paragraph of the article, if the crime is committed by hiding the real identity or within the framework of an organizational activity, the punishment to be given to the perpetrator can be increased by half. The rate to be increased here is at most half, it is possible to impose less sanctions, but it is not possible to increase it more.
In case the crime is committed through the press and broadcasting, the penalty can be increased up to half, pursuant to Article 218 of the Turkish Criminal Code. Here, too, less increase is possible, but it is not possible to increase it more than half.
In case the crime is committed by concealing the real identity or within the framework of organizational activity, the penalty is increased first because the real identity is hidden or committed within the framework of organizational activity, and then because it is committed through the press and broadcasting.
IX. PROSECUTION PROCEDURE, COMPETENT AND AUTHORIZED COURT
The follow-up of the crime regulated in both paragraphs of Article 217/A of the TCC is not dependent on the complaint, it must be followed ex officio.
The court in charge of the crime regulated in the article is the Criminal Court of First Instance pursuant to the upper limit of the penalty stipulated for the crime regulated in the article and Article 11 of the Law No. 5235. In case the crime is committed through the media, pursuant to Article 27 of the Law No. 5187, the Criminal Court of First Instance no. 2 is in charge and these cases are considered urgent matters.
The competent judicial authority, on the other hand, is not the place where the public community is located, but the place where the false information is publicly disseminated.
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1 Kahramanmaraş Deputy Ahmet Özdemir, Istanbul Deputy Feti Yıldız, and 64 Deputies’ Law Proposal on Amending the Press Law and Some Laws (2/4471) and Reports of the Digital Media Commission and the Justice Commission, https://www5.tbmm.gov. tr/sirasayi/donem27/yil01/ss340.pdf.
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