In the decision, the prosecutor has stressed that the Criminal General Assembly of the Court of Cassation had ruled that even if members of the press used offensive, harsh, striking, shocking, or rude language when commenting, this would not constitute defamation

CANAN COŞKUN

An investigation against journalist Besime Yardım, who was detained on 14 May on the charge of “spreading misleading information” (TCK 217/A) over a social media post regarding a firearms trafficking operation in Adana, was dismissed on 21 May.

Besime Yardım, owner of the Adana Bunu Konuşuyor news platform and Editor-in-Chief of the Çukurova Metropol newspaper, was taken into custody on14  May when she was summoned to the police station for questioning and was later released under judicial control measures.

In the decision, the prosecutor stated that it was natural for those in public office or seeking public office to be subject to harsher criticism than others. Referring to freedom of the press, the prosecutor pointed out that freedom of expression and freedom of the press were fundamental rights not only for those who exercised them but also for individuals and groups who had the right to know the truth.

Prosecutor: “Criminal prosecution should be the last resort”

In their decision, the prosecutor reminded that members of the press have the freedom to explain, criticize, disseminate, and comment on events they consider newsworthy in accordance with their own opinions, and recalled that there are decisions of the Criminal Chamber of the Court of Cassation stating that even if they use an offensive, harsh, striking, shocking, or rude style when commenting, this does not constitute defamation. The prosecutor emphasized that the same points were highlighted in the European Convention on Human Rights and the decisions of the European Court of Human Rights (ECtHR), stressing that even severe criticism should not be considered an attack on personal rights.

The prosecutor stated that, according to the decisions of the ECtHR, when it is concluded that there has been an attack on personal rights through the press, the first step should be to request a retraction through the courts regarding the news article or writing in question, and if necessary, to seek legal compensation for material and moral damages, with criminal proceedings being considered as a last resort.

“It is sufficient for the news to be consistent with visible reality”

In the decision, the prosecutor stated that the press cannot be expected to investigate concrete facts, and that it is sufficient for the news to be consistent with the apparent reality at the time of publication and with the information and documents available. The prosecutor emphasized that apparent reality should not be understood as concrete reality, but rather as consistency with the form in which the news item was presented at the time it was published.

The prosecutor listed the duties of the press as follows: To enlighten the public in an objective and truthful manner about events that concern or should concern the general public; to initiate discussions that encourage the public to think about various issues; to equip the public with accurate and truthful information about social and political developments; to criticize and warn those in power and to monitor them through these methods; and to raise awareness among individuals about the problems of the society in which they live and of humanity as a whole.

“Harsh criticism of public officials should be taken for granted”

The prosecutor stated that it should be accepted that freedom of the press includes exaggeration and even incitement to a certain extent, and noted that even if the expressions used by journalists in their articles are “polemical,” they cannot be considered baseless personal attacks when supported by objective explanations. The prosecutor stated that it is natural for those who hold or seek public office to be subject to harsher criticism than others.

Stating that the freedom to express thoughts and opinions has an important place among fundamental rights and freedoms, the prosecutor emphasized that the press is one of the most important and effective means of exercising this freedom. The prosecutor pointed out that the freedom to express thoughts and the freedom of the press are fundamental rights not only for those who exercise them but also for individuals and groups who have the freedom to learn the truth.

The prosecutor recalled that for the crime of “disinformation” under Article 217/A of the Turkish Penal Code to be established, the act in question must be “likely to disrupt public peace,” and noted that journalist Yardım's sharing of the news was not of a nature likely to disrupt public peace. The prosecutor ruled that there were no conditions that would create an open, imminent, and concrete danger to the order and peace of society, and therefore decided that there was no basis for prosecution against Yardım.

In the news post under investigation, journalist Yardım shared the news that 73 of the 94 people detained in a simultaneous operation carried out by the Adana Provincial Security Directorate's Smuggling and Organized Crime Branch in 23 provinces had been released, and in the conclusion of the article, she mentioned differences in the approach of the security and judicial authorities to the operation. Besime Yardım used a photo provided by the police regarding the operation in her post. She wrote, “73 of the 94 people detained for illegal arms trafficking have been released,” and asked, “Is the problem with the police or the judiciary?” One day after sharing this post, on 13 May, Yardım was called by the police and asked to give a statement. On the morning of 14 May, Yardım went to the police station with her lawyer to give a statement and was referred to the court on the charge of “spreading false information.” Yardım was released on the condition that she sign in at the police station on the 15th of every month, based on the claim that there was “concrete evidence indicating strong suspicion that he had committed the crime she was accused of.” At the same time, Instagram blocked access to the post in question, citing a “legal request.”

According to the controversial law, the elements of this crime include “spreading false information contrary to the truth regarding the internal and external security of the country, public order, and public health, with the intent to create anxiety, fear, or panic among the public, in a manner conducive to disrupting public peace.” The penalty for this crime is imprisonment for a term of 1 to 3 years