Criminal Division
Case Number: 2014/19526
Decision Number: 2015/3184
“Text of Justice”
Court: First Instance Criminal Court
Crime: Illegally providing or obtaining information
Decision: Acquittal
The participant appealed the ruling acquitting the defendant of the crime of illegally providing or obtaining data. The file was reviewed and the necessary points were evaluated:
The participant’s other objections were rejected, however;
According to the scope of the file; the defendant and the victim knew each other because they worked together at the same shipping company for a period of time. During the period when the defendant left the workplace, the defendant’s profile picture was used as the profile picture taken from the victim’s Facebook account, and the following messages were sent: “Hello… Ma’am, how are you?” and “It would be wrong not to respond when you are so beautiful, you are right.”
Following the sending of two messages dated 09/16/2013, the victim requested that the witness, who was the owner of the workplace, call the defendant to find out if he was involved in the incident. In accordance with the victim’s request, the witness called the defendant at 10:00 a.m. on 09/17/2013. He conveyed the matter to the defendant and stated that the defendant had no connection whatsoever with the Facebook account named …; however, approximately two hours after this phone call, the profile picture on the defendant’s Facebook account named … was removed and replaced with a horizontal image.
If the defendant opened a new Facebook account named “…” using the victim’s photo in order to prove to the victim that fake accounts could easily be opened on the social networking site using photos belonging to others,
It was noted that the victim first called the witness, who was the owner of the workplace, to find out if he had any connection to the incident, obtained information about the Facebook account named “…” where the defendant’s photo was used, and that he himself was a
Facebook user and knew that fake Facebook accounts could be created using public profile photos. Given the victim’s sincere statements, which remained essentially unchanged throughout the proceedings, and the defendant’s statement after the meeting at the workplace, “I will open 10 separate Facebook accounts with your photo, you will see,” in a concrete situation where there is no justification that could be accepted by any branch of law or any circumstance that could be taken into account in this context, and by giving priority to his statements that he made such remarks, the defendant’s action is covered by Article 136/1 of the Turkish Criminal Code on the grounds that he could make the victim’s personal data, namely her photo, available to others on the Facebook account named “…” without her consent.
Pursuant to Decision No. 223/2 of the Criminal Procedure Code (CMK), the defendant’s defenses put forward to avoid punishment should be taken into account, and although the defendant’s motive is not important in a crime committed with general intent, pursuant to Decision No. 223/2 of the CMK, based on written justifications not included in the file, in accordance with Article c, an acquittal decision should be issued.
In accordance with Article 8 of Law No. 5320, which is still in force, and pursuant to Article 321 of the Criminal Procedure Code No. 1412, the judgment was overturned by unanimous vote on February 23, 2015.