Does Sharing WhatsApp Messages Between Individuals Constitute a Crime?
CRIMINAL DEFENSE
Att. Berke KOCAAĞAOĞLU
4 min read
I- WHAT IS THE CRIME OF VIOLATING THE PRIVACY OF COMMUNICATION?
The Turkish Penal Code No. 5237 and Turkish legal doctrine define the institution of "Crime" as a wrong committed against society, acknowledging that offenses against the public must be prosecuted on behalf of the public. Moving forward from this point, in accordance with the principle of legality, any type of act defined as a crime in the legislation constitutes a misdemeanor and a wrong committed against the public.
Indeed, Article 132 of the Turkish Penal Code regarding the matter accepts that communication between individuals is, as a rule, private regardless of the method used. It stipulates that in the event of disclosing private communication, the perpetrator who disrupts public peace must be punished for this act. The explicit statutory text governing the relevant crime is set forth below:
Violating the Privacy of Communication – TPC Article 132 (1) Any person who violates the privacy of communication between individuals shall be sentenced to imprisonment from one year to three years. If this violation of privacy occurs by means of recording the content of the communication, the penalty to be imposed shall be increased by one fold. (2) Any person who unlawfully discloses the content of communication between individuals shall be sentenced to imprisonment from two years to five years. (3) Any person who unlawfully and publicly discloses the content of communications made with themselves, without the consent of the other party, shall be sentenced to imprisonment from one year to three years. The same penalty shall be imposed if this disclosed data is published through the press and broadcasting channels.
II- IS SHARING WHATSAPP MESSAGES WITH THIRD PARTIES A CRIME?
As explained above, communications between individuals are legally private. Although the Turkish Penal Code No. 5237 does not introduce a regulation regarding the specific form of communication, the preamble of the article explicitly states: "The crime in question is committed by learning the content of communication between specific individuals. The manner in which the communication between individuals is carried out is of no importance for the occurrence of the crime." Thus, it is clearly regulated that any channel used as a means of communication between individuals must be kept private. Based on this, there is no doubt that WhatsApp messages used as a means of communication between individuals must also be kept legally private.
Therefore, if WhatsApp messages are disclosed to third parties through any channel without the consent of the other party, the crime of violating the privacy of communication will occur, and the perpetrator will be sentenced to imprisonment from one year to three years. The penalty to be imposed may be increased by the judge depending on the manner in which the crime was committed.
III- DOES A CRIME OCCUR IN CASE OF THE CONSENT OF THE RELEVANT PERSON?
Article 26/2 of the Turkish Penal Code No. 5237 states: "No penalty shall be imposed on any person for an act committed within the framework of the expressed consent of a person regarding a right over which they have absolute power of disposal." Accordingly, if a person gives prior or subsequent, explicit or implied consent to an act constituting a crime committed against a right over which they have absolute disposal, the perpetrator will not be punished for the crime, and a ground of justification (compliance with the law) will arise. Likewise, Article 132/3 of the Turkish Penal Code indicates that consent will eliminate the crime in cases where the offense is committed publicly.
Voice recordings, images, and messages of individuals possess the nature of personal data and are among the personal rights protected by the Turkish Civil Code. A person has the right to dispose of their inherent rights to the extent permitted by law, with certain exceptions. Regarding the crime of violating the privacy of communication, consent acts as a justification that eliminates the penalty because it is a crime committed against disposable rights. This consent may be explicit or implied.
However, it must be emphasized that since a person's right to life and bodily integrity cannot be subject to disposal under any legal circumstances, crimes committed against these rights will be punished by the legal system even if the victim consents.
IV- DOES A CRIME OCCUR IF WHATSAPP MESSAGES ARE SUBMITTED TO THE COURT?
The crime of violating the privacy of communication, by virtue of the principle of legality and the explicit provision of the law, is a crime that can only be committed with intent (mens rea). Accordingly, the perpetrator must knowingly and willingly disclose the private communication, meaning they must possess criminal intent for the offense to occur. However, in cases where WhatsApp messages are submitted to courts for the purpose of proving a fact, it would be more accurate to state that the parties are exercising their Constitutional right of defense rather than acting with the intent to commit a crime.
As a matter of fact, the Court of Cassation, in one of its judgments, upheld the upper court's decree regarding the acquittal of the defendant and the overturning of the local court's conviction. The court stated that the defendant, who was legally married to the participant at the date of the incident, did not act with criminal intent since they believed the documents submitted to the divorce case file were of an evidentiary nature, and therefore the elements of the crime did not materialize (12th Criminal Chamber, Merit No. 2020/1483, Decision No. 2024/2149). Moving forward from this precedent, the crime will not occur since the party defending themselves by relying on WhatsApp messages as evidence will lack criminal intent.
However, it should be noted that in cases where the evidence is not related to the defense or the fact subject to the lawsuit, or where it contains personal data regarding non-parties to the lawsuit, an infringement of personal data may come into question. Therefore, it would be legally more appropriate to request the summoning of such evidence from the court before formally submitting it as a piece of evidence.
Att. Berke KOCAAĞAOĞLU
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