The Crime of Defamation via Email

The Crime of Defamation via Email. In the age of digital communication, electronic mail (e-mail), which forms the backbone of corporate and individual communication, has become one of the most frequent mediums for legal disputes and specifically attacks on personal rights. The crime of insult, regulated under Article 125 of the Turkish Penal Code (TPC), differs sharply from the classic crime of insult when committed via e-mail; specifically in terms of the formation of the material element (actus reus) rather than the moral element (mens rea), the integrity of digital evidence in terms of the law of evidence, and technical details in trial procedures (especially after the legal amendments in 2024 and 2025). This report analyzes the crime of insult committed via e-mail in seven strategic steps in light of the most up-to-date provisions of the TPC and Criminal Procedure Code (CPC), established case law of the Court of Cassation (Yargıtay), and reforms introduced by Laws No. 7418 and 7531. The primary aim of the report is to provide a deductive guide for legal practitioners, academics, and corporate executives against the technical and legal challenges encountered in the investigation, prosecution, and conciliation processes of this crime type.

Step 1: Legal Anatomy of the Crime and Elements of Typicity

The legal characterization of the crime of insult via e-mail requires a much more complex analysis of “addressee” and “publicity” compared to classic verbal insult crimes. The technical structure of e-mail, the ability to send a message to multiple people simultaneously (CC/BCC), and the temporal disconnect between the moment the message is sent and the moment it is read, have necessitated a reinterpretation of the concepts of “in the presence” (huzurda) and “in the absence” (gıyapta) in the application of TPC Article 125.

1.1. Protected Legal Benefit: Concepts of Honor, Dignity, and Prestige

In the systematics of Turkish Criminal Law, the crime of insult, regulated under “Crimes Against Dignity”, aims to protect the individual’s moral existence, self-esteem, and reputation in society. In the text of TPC Article 125, the crime is defined as attacking a person’s moral existence by “attributing a concrete act or fact that could offend a person’s honor, dignity, and prestige” or by “cursing”.

Here, the most critical distinction to be made in terms of legal technique is the fine line between “heavy criticism”, “rude address”, and “insult”. According to the settled case law of the Court of Cassation, not every rude word or act of discourtesy constitutes the crime of insult. For example, using expressions such as “rude”, “disrespectful”, or “liar” towards the addressee in an e-mail is generally evaluated by the Court of Cassation as “rude address” or “act contrary to courtesy”, and it is accepted that the legal elements of the crime are not formed. Similarly, bed-wishing expressions like “May God damn you” or “I hope you don’t see tomorrow” are considered the perpetrator’s wish rather than a concrete attack on the person’s honor and dignity, and are not evaluated within the scope of the crime of insult.

However, if a concrete fact is attributed in the e-mail content, such as the person committing theft, taking bribes, or being involved in corruption, or if cursing acts such as “dishonorable”, “undignified”, or “moron” are included, the material element of the crime is fully embodied. Whether criticisms regarding work performance, such as “incompetent” or “inadequate”, frequently encountered in corporate e-mails, count as insults depends on the context in which the word is said, the hierarchical status of the parties, and whether the criticism has concrete grounds; however, the Court of Cassation tends to interpret the limits of criticism broadly.

1.2. Insult “In the Presence” Committed via Communication Tools (TPC 125/2)

In classical doctrine, “insult in the presence” referred to situations where the perpetrator and the victim were face-to-face, and the act directly appealed to the victim’s hearing or seeing senses. However, with digitalization, the concept of “presence” has been abstracted from physical space. Article 125/2 of the TPC accepts the commission of the act via “an audio, written, or visual message” addressing the victim as an insult committed in the presence.

In the context of e-mail, this means: The crime is considered committed the moment the insulting e-mail sent by the perpetrator falls into the victim’s e-mail box (server) and the victim has the opportunity to access this message. Whether the victim reads the e-mail online at that moment or sees and opens it in the “Inbox” days later does not change the fact that the crime was committed “in the presence”. Here, the perpetrator’s intent is to deliver the message directly to the victim. Therefore, a message with the victim’s e-mail address in the “To:” section is equivalent to words spoken to the victim’s face.

1.3. Insult “In the Absence” and Mathematical Analysis of the “Communication to Third Parties” (İhtilat) Element

If the e-mail containing the insult was sent not directly to the victim but to third parties in the victim’s absence, the crime must be evaluated under “insult in the absence” (TPC 125/1). The lawmaker has stipulated that for an insult made in the absence to be punishable, the act must be committed by communicating with at least three people. “İhtilat” (communication/contact) in criminal law means “ensuring that the insult is learned by others”.

The analysis of the condition of communication in e-mail traffic should be done especially through “CC” (Carbon Copy) and “BCC” (Blind Carbon Copy) fields:

• Case A (Insufficient Communication): The perpetrator sent an e-mail containing an insult about the victim to only 1 or 2 people. In this case, even if the act of insult has occurred, a penalty cannot be imposed under TPC 125/1 because the condition of “communication with three people” (objective condition of punishability) has not been met. The Court of Cassation requires these three people to have actually “learned” the e-mail, not just be in a position to “learn” it. That is, those three people must open and read the e-mail.
• Case B (Sufficient Communication): The perpetrator sent the e-mail to 3 or more people (e.g., To: Person1, Person2, Person3). In this case, the crime of insult in the absence occurs.
• Case C (Cumulative Communication): The people communicated with do not need to be together. If the perpetrator speaks about the victim by sending the same or similar content e-mail to Person1 in the morning, Person2 at noon, and Person3 in the evening, the communication condition is still considered met.

1.4. The Element of Publicity and the Distinction between Social Media and E-Mail

The commission of the crime of insult publicly (TPC 125/4) is a qualified form requiring the penalty to be increased by one-sixth. Concept of publicity is defined as “the existence of the possibility of the act being seen, heard, and perceived by an indefinite number of people”.

The existence of publicity in crimes committed via e-mail depends on the nature of the group to which the e-mail is sent:

• Closed Groups: In messages sent to a small e-mail group or WhatsApp group where only certain people are members and there is no external access, it can be accepted that publicity does not occur even if “communication with three people” occurs. The 4th Criminal Chamber of the Court of Cassation has ruled that insults committed in places such as the prisoner admission unit of a prison or an inspector’s room do not constitute publicity; because these are not places open to “everyone”.
• Open and Broad Audiences: However, publicity definitively occurs if an e-mail is sent to an “All Users” list where thousands of employees of a company are present, or if the content is copied from the e-mail and shared on platforms open to everyone like Facebook/Twitter. The Court of Cassation indisputably accepts that “public” shares on social media are public.

Table 1: Comparison of In the Presence, In the Absence, and Publicity in E-Mail Insult Crimes

Step 2: Digital Evidence Determination and Technical Examination

In crimes committed via e-mail, the proof of the material fact depends entirely on the correct collection and analysis of technical data. Although taking a “screenshot” is considered a commencement of evidence, it is not sufficient on its own to base a judgment due to the nature of digital data being open to manipulation. Forensic informatics techniques come into play at this stage.

2.1. E-Mail Metadata (Header) Analysis

For an e-mail to carry legal evidential quality, not only the visible text (body) but also the “Header” information, which is the technical identity card in the background, must be submitted to the file.

• What is a Header and What Does it Contain? E-mail headers contain the entire path the message followed from the sending server to the receiving server, timestamps, message ID (Message-ID), and most importantly, the sender’s source IP address (Source IP / X-Originating-IP).
• Evidential Value: The Court of Cassation and civil courts accept data in electronic media as “documents” pursuant to Article 199 of the Code of Civil Procedure (HMK). However, for this document to reach the power of “conclusive evidence”, it must be proven that its integrity has not been compromised. E-mails sent with a secure electronic signature are conclusive evidence, while unsigned e-mails are discretionary evidence.
• Header Extraction Methods: Lawyers and victims must save the e-mail in .eml or .msg format using the “Save As” option instead of “forwarding” it when collecting evidence. Full header information can be accessed via “File > Properties” in Outlook and “Show Original” in Gmail. Original header information is lost in a forwarded e-mail, and the chain of custody is broken.

2.2. IP Address Determination and “Suspect” Relationship

If the identity of the perpetrator is unknown during the investigation phase (e.g., if insulted from an address taken with a fake name like [email protected]), the only way is to reach the person from the IP address.

• CGNAT and Shared IP Problem: Due to the CGNAT (Carrier Grade NAT) technology applied by service providers in Turkey due to IPv4 address insufficiency, the same IP address is given to hundreds of users at the same time. Therefore, not only the IP address but also “Port” information and precise timestamp (in millisecond precision) are required.
• Court of Cassation’s IP Decisions: The Court of Cassation does not consider the determination of the IP address sufficient for conviction on its own. It must be proven “beyond a shadow of a doubt” that the subscriber to whom the IP address is registered was the person using that device at the time of the crime. If the defendant makes a defense such as “The IP is mine but my Wi-Fi password was cracked” or “I had a guest at that time” and there is no collateral evidence (such as finding the draft of the e-mail in the computer image) disproving this defense, an acquittal decision may be given pursuant to the principle of “in dubio pro reo” (the defendant benefits from the doubt).

2.3. International Service Providers (Google, Microsoft) and Transparency Reports

The fact that the e-mail provider is abroad (Gmail, Hotmail, Yahoo) is the biggest factor blocking investigation processes in Turkey.

• Data Sharing Policies: Companies like Google and Microsoft are subject to US laws. In US law, “defamation” is generally evaluated within the scope of freedom of expression and is not seen as a crime (it is a subject of tort law). Therefore, requests for IP addresses or user identity information made by Turkish authorities with the accusation of “insult” are generally rejected by these companies.
• Transparency Report Data: According to Google’s transparency reports, a significant portion of content removal and data requests from Turkey are based on “Defamation”. However, Google resists providing data unless it sees a violation of its own “community rules” or US laws, even if there is a violation of local laws. This situation can make the identification of the perpetrator impossible in insult crimes committed via fake Gmail accounts.

2.4. E-Determination (Turkish Notaries Union)

Against the risk of the e-mail being deleted or removed by the service provider, the “E-Tespit” (E-Determination) system of the Union of Notaries of Turkey is the strongest protection. The victim enters the system via an interface like internet banking and digitally records the URL or content of the relevant e-mail in the presence of a notary. The “E-Determination Report” given as a result of this process conclusively proves that the e-mail existed on that date and with that content.

Step 3: Investigation Phase and Complaint Procedures

Depending on its legal qualification, the crime of insult via e-mail falls into the category of “crimes subject to complaint” or “crimes investigated ex officio”. This distinction is vital for initiating the process.

3.1. Complaint Period and Statute of Limitations

• Simple Insult (TPC 125/1-2): The victim must file a complaint within 6 months from the date they learned of the act of insult and the perpetrator. This period is a statute of limitations; if a complaint is not filed within the period, an investigation cannot be conducted. If the e-mail was sent on January 1st and the victim saw it on March 1st, the period starts on March 1st. However, if the statute of limitations for the lawsuit (8 years) passes over the act, a complaint cannot be filed regardless of the learning date.
• Insult to Public Official (TPC 125/3-a): If the insult is made to a public official (teacher, doctor, police officer, judge, etc.) due to their duty, the crime is not subject to complaint. The Prosecutor’s Office initiates an investigation ex officio when it learns of the e-mail in any way (e.g., when internal disciplinary investigation documents are transferred to the courthouse). Withdrawal of the complaint does not drop the public case.

3.2. Investigation Procedures and Taking Statements

Upon complaint, the Public Prosecutor initiates an investigation. The first step is to write a warrant to BTK (Information and Communication Technologies Authority) or the relevant service provider (for local providers) to determine the IP address from which the e-mail was sent. When the perpetrator is identified, their statement is taken.

• Suspect’s Statement: The suspect is asked about the e-mail address and content. If the suspect defends themselves by saying “the account is mine but I didn’t send it, I was hacked”, the prosecutor may have an expert examination performed on the computer or phone.

3.3. Decision of Non-Prosecution (KYOK)

As a result of the investigation;

1. If the perpetrator cannot be identified (Overseas source IP and unresponsive provider),
2. If the action has not reached the level of insult (Heavy criticism, bed-wishing),
3. If the evidence is insufficient (Only screenshot exists, no header, defendant denies), The prosecutor issues a “Decision of Non-Prosecution” (KYOK). An objection can be filed against this decision to the Criminal Judgeship of Peace within 15 days. New evidence requested to be examined (e.g., witness statements or new technical reports) should be presented in the objection.

Step 4: Alternative Dispute Resolution: Conciliation and 2024 Reforms

The Turkish legal system emphasizes restorative justice institutions to alleviate the judicial burden. The crime of insult via e-mail is one of the areas where conciliation is most frequently applied. However, legal regulations made in 2024 and 2025 have brought revolutionary changes in this field.

4.1. Scope of Conciliation

TPC 125/1 (Simple Insult) and TPC 125/2 (Insult via Message) crimes are within the scope of conciliation pursuant to CPC Article 253 as they are subject to complaint.

• Exception: The crime of insult to a public official due to their duty (TPC 125/3-a) is not within the scope of conciliation as it is not subject to complaint. A public case is opened directly for these crimes.

4.2. Conciliation Process and Acts (Edim)

During the investigation phase, if the prosecutor determines that the file is subject to conciliation, they send the file to the Conciliation Bureau. The assigned conciliator contacts the parties (usually via phone or e-mail).

• Conciliation Offer: The parties can agree in exchange for any act or without an act. Frequently encountered acts: Donation to Mehmetçik Foundation, donation to LÖSEV, publishing an apology e-mail, or paying cash compensation.
• Result: If conciliation is achieved, the prosecutor issues a “Decision of Non-Prosecution” (KYOK). This decision is not recorded in the criminal record.

4.3. 2024 and 2025 Changes: The End of “HAGB” Era, “Stay” Decision

The Law No. 7531 on Making Amendments to Certain Laws, published in the Official Gazette in November 2024, and related judicial packages have changed the nature of decisions given as a result of conciliation.

• Old System (Pre-2024): If conciliation was achieved during the prosecution phase (after the lawsuit was filed) and the defendant was to pay the act in installments or the act was postponed to a future date, the court used to give a “Deferral of the Announcement of the Verdict” (HAGB) decision. HAGB kept the defendant under supervision for 5 years.
• New System (Post-Law No. 7531 – CPC 254 Amendment): With the amendment that entered into force on 14.11.2024; if conciliation takes place in the prosecution phase and the act is fulfilled immediately (in one go), the case “Drops”. However, if the fulfillment of the act is left to a future date, bound to installments, or is continuous, the court will now give a “Stay of Proceedings” (Durma Kararı), not HAGB.
  • Meaning of Stay Decision: The statute of limitations does not run during the stay period. When the defendant fulfills their act, the case drops. If not fulfilled, the trial continues from where it left off. This change has transformed the HAGB’s “Sword of Damocles” effect on the defendant into a more technical and manageable “preliminary issue/stay” procedure.
• Ban on Compensation Lawsuits: Pursuant to CPC 253/19, if conciliation is achieved, the victim can no longer file a lawsuit for pecuniary or non-pecuniary damages in civil courts for the same act. The conciliation report has the nature of a verdict (court decision).

Step 5: Trial Procedure: Simple Trial and Prosecution

If conciliation cannot be achieved, the prosecutor prepares an indictment and a lawsuit is filed in the Criminal Court of First Instance. The trial procedure in e-mail insult crimes is determined according to the upper limit of the penalty for the crime.

5.1. Simple Trial Procedure (CPC 251)

Since the upper limit of the penalty for the crime of insult under TPC 125/1 is 2 years, courts can apply the “Simple Trial Procedure” over the file without opening a hearing.

• Process: After accepting the indictment, the court sends a notification to the parties and requests their written defenses within 15 days. No hearing is held, no witnesses are heard. A decision is made solely based on the evidence in the file (e-mail printouts, E-Determination report, IP report).
• 1/4 Reduction: In conviction decisions given with the simple trial procedure, a reduction of one-fourth (1/4) is made in the penalty by law.
• Objection and Risk Analysis: The defendant or the victim can object to the decision. Upon objection, the court must open a hearing and conduct a trial according to general provisions. However, the critical point is: If the objection was made by the defendant and they are convicted again as a result of the hearing, they lose that 1/4 reduction gained from the simple trial. If the victim objects, the reduction can be preserved.

5.2. Right to Prove and Immunity of Claim

During the trial, the defendant can resort to two important defense tools:

1. Right to Prove (TPC 127): If the defendant proves that the act attributed in the e-mail (e.g., the claim “you defrauded the company”) is true, they do not receive a penalty for the crime of insult. This right applies especially to crimes committed against public officials or in matters concerning society.
2. Immunity of Claim and Defense (TPC 128): If the e-mail containing the insult was sent to relevant authorities (court, disciplinary board) for the purpose of claim or defense within the scope of an ongoing lawsuit or administrative investigation and the content is connected to the dispute, the crime of insult does not occur “provided it is measured”.

Step 6: Determination of Penalty and Qualified Forms

If the crime is found fixed at the end of the trial, the judge uses the order in TPC Article 61 and the options in TPC Article 125 when determining the penalty.

6.1. Basic Penalty and Optional Sanction

Pursuant to TPC 125/1, the penalty for simple insult via e-mail is “imprisonment from three months to two years” or “judicial fine”.

• Judge’s Discretion: The judge must choose one of these two sanctions. Both imprisonment and judicial fine cannot be imposed at the same time. In practice, if the defendant has no criminal record, a judicial fine is usually preferred and calculated based on an amount varying between 20 TL and 100 TL per day.

6.2. Qualified Forms and Reasons for Increase

• Public Official / Religious Values (TPC 125/3): If the e-mail is sent to a public official due to their duty (e.g., e-mail sent by a parent to a teacher), the lower limit of the penalty cannot be less than 1 year.
• Publicity (TPC 125/4): If the e-mail content is committed “Publicly” (e.g., in a way that reflects to a broad mail group or social media), the penalty is increased by one-sixth (1/6).

6.3. Reasons for Reduction (Unjust Provocation and Mutual Insult)

Since e-mail traffic usually proceeds in the form of a dialogue (“thread”), “who cast the first stone” is important.

• Unjust Provocation (TPC 129/1): If the defendant sent the e-mail as a reaction to an unjust act of the victim directed at them (e.g., a provocative mail previously sent by the victim), the penalty can be reduced up to one-third or completely lifted.
• Mutual Insult (TPC 129/3): If the parties have mutually insulted each other during e-mailing (A: “Liar”, B: “You are the liar, dishonorable”), the judge may not impose a penalty on both parties or only on one (Decision of No Ground for Punishment).

Step 7: Legal Remedies, HAGB, and Execution Process

The process does not end with the verdict; legal remedies and the execution regime begin. The 2024 reforms have a major impact at this stage as well.

7.1. New Era in HAGB (Law No. 7499)

If a prison sentence of 2 years or less or a judicial fine is imposed on the defendant, the court can give a “Deferral of the Announcement of the Verdict” (HAGB) decision.

• Removal of the Condition of Defendant’s Acceptance: With the amendment made in 2024 (Law No. 7499), the defendant’s acceptance is no longer sought for HAGB to be given. The court can give HAGB without asking the defendant if the conditions are met.
• Opening of the Appeal (Istinaf) Path: While previously only an “objection” could be made to a higher court against HAGB decisions and the method of review was limited; with the new regulation, the path of application to the Regional Court of Justice (Appeal/Istinaf) has also been opened against HAGB decisions. This means a stronger supervision mechanism for defendants.
• Result: The defendant who receives HAGB is subject to a 5-year supervision period. If they do not commit a crime, the case drops.

7.2. Appeal (Istinaf) and Cassation (Temyiz)

• Appeal (Istinaf): Applied within 7 days from the notification of the decision.
• Finality Limit: As of 2024, judicial fines under 3,000 TL (may increase according to revaluation rate, 15,000 TL limit applies for some special cases) are final.
• Cassation (Yargıtay): Since the penalties given in insult crimes usually remain under 5 years, the file becomes final at the Appeal stage and does not go to the Court of Cassation. However, in qualified forms like insult to a public official and in freedom of expression discussions, Court of Cassation supervision may be possible.

7.3. Civil Lawsuit (Non-Pecuniary Damages)

After the criminal case is finalized, the victim can file a lawsuit for non-pecuniary damages in the Civil Court of First Instance. The criminal court’s determination that “the act is unlawful” and “committed by the defendant” binds the civil judge (Code of Obligations Art. 74). The amount of compensation is determined according to the content of the e-mail, the social status of the parties, and the status of publicity.

Conclusion

The crime of insult via e-mail has a multi-layered structure in terms of technical evidence (header analysis, IP determination), legal qualification (distinction of in the presence/in the absence/publicly), and procedural law (conciliation reforms, simple trial). Especially the legal amendments that entered into force in 2024 and 2025 have brought revolutionary innovations such as issuing a “Stay” decision instead of HAGB as a result of conciliation and opening the appeal path against HAGB decisions. In this process; it is essential for victims not to miss the 6-month complaint period and to ensure evidence security with E-Determination; and for defendants to effectively use favorable provisions such as mutual insult and simple trial reduction for a fair trial process. Difficulties in obtaining data from international service providers require investigation authorities to focus more on local evidence (device examination, witness statement).

Table 2: Summary of 2024/2025 Legal Reforms in E-Mail Insult Crime