Attack on Personal Rights through Social Media Effects of Social Media on Society and Law

SUMMARY

With the increase in the use of social media day by day, the use of these platforms, whose main function is communication, by the society for various purposes has also become widespread. Although the positive effect of social media has paved the way for communication, unity and cooperation, these tools are often used unconsciously. In this article, the place and impact of social media today, its effects on society, crimes committed through social media, public pressure and judgment will be discussed and an evaluation will be made about the Hasan Bilgili incident.

Keywords: Media, Social Media, Personal Rights, Public Pressure, Presumption of Innocence, Universal Declaration of Human Rights, Media Trial, Public Opinion and Criminal Judgment, Insult, Threat, Compensation

INGREDIENTS
SUMMARY
1) THE PLACE OF SOCIAL MEDIA TODAY
2) SOCIAL IMPACTS OF SOCIAL MEDIA
i.POSITIVE EFFECTS
ii.NEGATIVE EFFECTS
3)Insulting/Threatened Crimes Committed THROUGH SOCIAL MEDIA
4)PUBLIC PRESSURE AND THE INFLUENCE PROCESS OF THE JUDICIARY
CONCLUSION

1. THE CONCEPT OF SOCIAL MEDIA AND THEIR PLACE IN TODAY
Social media is the name given to all of the environments and tools that are based on internet and web 2 technology, allowing people to socialize by establishing mutual communication and interaction and creating their own content (Kaya 2015). Although there are widespread opinions that this concept is based only on the development of the internet, the list that Şimsek (2012:33) cites as the development chronology of communication tools starts with cave paintings. Following Arpanet, created in 1969, microprocessor in 1971, VHS videotape recording in 1976, Teletext, Telefax in 1978, Walkman in 1979, CNN (cable news Networks) in 1980, MTV (music television) and IBM in 1981. (Personal computer), aodio compact disc in 1982, Apple Macintosh computer in 1984, World Wide Web (internet) in 1991, Facebook in 2004, Youtube in 2005 and Twitter in 2006, creating the foundations of social media (Çalışkan and Mencik, 2015).

Michael Frunchter, who has many studies on social media, explains social media with 5 Cs. According to Frunchter (2009), these 5 Cs that make up social media; conversation, commenting, contribution, community and collaboration. Conversation shows that the basis of social media is mutual communication. Commenting states that what is shared on social media is open to all kinds of criticism and comments. Contribution is to contribute with new ideas as well as comments. Community is the community within the social part of social media just as we need the communities we create in our normal life. Collaboration, on the other hand, refers to the cooperation required for social media to continue its existence. For some, social media is an environment where they avoid socialization, are alone, and have more audience, while for others, it may appear as a manifestation of the desire to socialize, to be appreciated in communities, and to be followed. Social media, which responds to the wishes of people such as escaping from daily life, being informed, having fun, communicating, and spending time with the dimension of interaction, has become a tool that surrounds people the fastest and most, and is promising as much as it can be personalized (Hazar, 2011). As it can be seen, with the inevitable development of technology, social media is among the mass media, the use of which has become quite widespread especially in recent years.

Apart from television, in other words, classical media, people can communicate easily, have information and reach a wide audience by expressing their opinions, especially through the widely used social platform Facebook, Instagram, as well as Twitter. In this time period we live in, the social media network provided by the internet attracts almost all people and establishes a virtual world (Çalışkan and Mencik 2015). Social networks, which are one of the tools of social media, have the feature of being a new public area of ​​the internet rather than being the area of ​​maintaining personal communications. (Sarı, 2014, Çildan et al. 2012). Therefore, in today’s society, social media plays an important role in bringing new dimensions to the formation and expression of the public, which has the function of influencing and limiting the political power when necessary. The spread of such means of communication imposes new duties on the state.

On the other hand. The importance of mass media in contemporary society has been reaching the news today. Thus, it is accepted that the state has an obligation not only to allow the exercise of this freedom, but also to develop and regulate it. (Centel, 1994). Indeed, the use of social media is free as stated under the title of “fundamental right and freedom to express one’s thoughts” in the Constitution, but the limit of this freedom should be to use it respectfully, carefully and carefully, without exceeding the rights and freedoms of other people.

2. EFFECTS OF SOCIAL MEDIA

Communication and technology, which are constantly changing, not only makes life easier, but also opens the door to some harmful factors. These social networks, which are created to benefit human life, can become the most dangerous weapon if it is not known to use, on the other hand, the internet world, which dominates every moment of our lives, can make human life much easier through its positive features if used correctly.

i. POSITIVE EFFECTS

Social media, which could only be accessed through computers in the early days, has now become easily accessible from mobile phones, 7 days and 24 hours, thanks to smart phones. For this reason, it has become a kind of life center for people, brought together people and cultures from different continents, and provided the development of music, art, entertainment, tourism and many other fields. It has become possible to communicate with people who are miles away in seconds, to be informed about the developments in the world in seconds, or to express only one’s own opinion.

Another positive feature is that; While there was a need for cassettes and CDs to listen to music 20 years ago, today we can listen to our favorite music with a single touch and share it with millions of people. The most popular photos, books, videos, news to be noticed, funny articles and many other information can be delivered to the masses through social media. While the opportunity to share such various information was very limited in the past, it has become possible to access information more easily, cheaply and quickly thanks to social media. Of course, it has also paved the way for companies and brands to easily announce their names, to market their new products, and to reach consumers from all walks of life, through the people who are widely followed on social media. In addition, it has become easier for people who will never meet in daily life, perhaps living in different geographies, to meet, and it has been possible for many people to get married thanks to social media.

Another positive aspect that needs to be mentioned is that a wide range of opportunities have been created for both the employee and the employer. Today, job seekers can easily reach employers, apply for a job quickly with a single click, and from the employer’s point of view, even by examining the employee’s social media profile, it is easily possible to get to know the employee and be recruited. In addition, while social media was developing, new job definitions such as social media specialist, content manager, influencer emerged and provided new employment areas to people.

Social media has a great impact on education. Namely, thanks to online trainings, information can be easily accessed without restriction of place and time, pages of books can be accessed through virtual libraries, and parents can easily receive child-rearing training with videos and texts prepared by experts on social media. Although it has these and many other positive features, it should be noted that social media has recently led to the emergence of new social movements and has started to function as a tool that facilitates the communication and organization of an organized social movement in real life. In this context, unlike traditional propaganda tools (brochures, etc.), it has become possible to reach not only the target audience but also all audiences easily, to convey the desired messages regardless of time and place, and to mobilize the masses through low-cost and often free methods.

ii. NEGATIVE EFFECTS

Although it is easy to share information in seconds thanks to social media, the irreversible sharing of an unwanted photo or information within seconds is undoubtedly one of the first negative effects that come to mind. In addition, it is an undeniable fact that the information presented by non-experts with various interpretations often creates information pollution and misleads people. On the other hand, the ease of access to information makes information and its source ordinary (Balta Peltekoğlu, 2012).

Another effect is that social media, which eliminates the concept of time, causes young people to spend a large part of their time on these platforms. Most people, especially young people, instead of reading a book or researching a current or cultural issue, waste their time on things that will not provide them with a real life advantage, such as keeping up with casual fashions, where and when other people are doing.

Social media, with Postman’s approach, removes the concept of shame/private and causes the disappearance of childhood. If the concept of shame can change from culture to culture, people can easily share even the most special ones on social media to attract attention, they see this as normal, children and young people lose the concept of shame or specialness by seeing these posts. In this case, children and young people who emulate each other or those who are older than themselves, direct themselves to adult life before they can live their childhood; As a result of this situation, the values ​​of the society change radically. Individuals who have the spirit of the virtual world by wasting a lot of time can move away from the social life of real life (Barbier, 2001, cited in Aydoğan, 2010). People who distance themselves from their real lives and break away from real relationships hide themselves behind their artificial identities that they are constantly trying to develop, and become almost artificial people.

However, the structural feature of social media tools and the fact that they are open to all interactions, unlike other traditional communication tools, make it possible to become a tool that can be easily manipulated, provoked and diverted from its purpose (Çalışkan & Mencik, 2015). Social movements that started in this context may cause deviations from the real purpose through social media over time. When this is the case, the control mechanisms weaken, and results that leave most people in a difficult situation can occur. The reason for this is often the information pollution and fake news on social media. In other words, image, sound, etc. of an event just to direct people. Providing information on social media by simply shortening it and adding guiding headlines misleads the society, and even leads to hatred. In the dictionary of the Turkish Language Institution, propaganda is defined as “Words, writings, etc., for the purpose of introducing, adopting and disseminating a doctrine, thought or belief to others. It is defined as “work carried out in various ways” (Küçükoğlu, 2006). In other words, propaganda is the provision of guidance through communication tools in order to ensure that the person or persons react in the direction desired by the propagandist. These propaganda techniques can appear in countless ways, such as giving a name or adjective to a person, publishing fabricated news without showing any evidence, and guiding everyone to choose sides by claiming that they are of the same opinion. In this way, it becomes possible for the community, which is easy to play with their emotions, almost hypnotized and dragged into herd psychology, to initiate lynching attempts against the targeted person. In this context, it is inevitable that insults and threats are facilitated, unauthorized use and sharing of personal data, identity theft and many other crimes have emerged. Regulations related to these crimes are especially on the current agenda of developed countries. Social media, which gives people a very wide area of ​​freedom, should be used freely, but this freedom should be within the framework of the legal system. For this reason, the right to intervene by the state in order to control the usage, the necessity of following the individuals by the cybercrime unit and the establishment of other control mechanisms arose for this reason.

4. INSULTING/THREATENED CRIMES COMMITTED THROUGH SOCIAL MEDIA

The concept of person has passed into our language from the concept of persona, which is of Latin origin, and in this context, the concepts of personality rights and human rights are related to the rights and freedoms that the so-called real persons have since they are born only because they are human. The content of these rights and freedoms is included in the legal system with many regulations such as Magna Carta, Virginia Bill of Rights, French Declaration of Human and Citizen Rights. In Turkish Law, personality and related rights are regulated in detail in Turkish Civil Code and Turkish Code of Obligations.

Personal rights; life, physical integrity, health, name, honor and dignity, professional and economic values, painting, conscience, freedom, private life, family integrity, personal data and other emotional values. These absolute rights may change and be updated as a result of developments over time. Since it is possible to assert these absolute rights against everyone due to their nature, it can be demanded from everyone not to violate them. In this context, by using his/her name and surname or nicknames pointing to himself, everyone acts such as humiliating himself, exposing himself to the enmity of others, humiliating, spreading untrue rumors about himself, damaging his professional and commercial reputation, slandering, violations of personal rights to honor and dignity, consent of his picture. Since it is clear that in all violations, including the cases of drawing, drawing, making, printing, distribution, use, publication and transmission by third parties, it is clear that both material and moral damages may arise, the aforementioned violation can also be requested to be eliminated or compensated.

Since a large part of the content created on social media is created, uploaded and distributed by users, information circulates freely and very quickly, it is easily accessible to everyone and a platform is created where people freely express their opinions. However, it should not be ignored that there are certain limits to this freedom. It is an undeniable fact that these borders are the rights and freedoms of other people, in other words, personal rights. For this reason, it is necessary to protect personal rights quickly and effectively against such violations. Attacks may occur against values ​​that are under the protection of personality rights, such as secrets, name, voice and image, private life and personal data. The most common form of violation due to the content shared by users on social media platforms is that the content contains elements of insult, threat or slander, thus damaging the honor, dignity and reputation of others (Kaya, 2015). With these created posts, insults can be committed with content consisting of written, visual and auditory elements that are humiliating, hurtful, humiliating, and subjecting people to hostility. In addition, sharing insulting posts by other users in the form of “retweet” or “share” is also considered a crime, considering that the content is adopted and has the purpose of reaching the content. In order to be able to talk about insult, first of all, there must be a concrete act or fact to humiliate the person, to damage his honor and dignity or to insult him. Whether the concrete act imputed to the person is real or not is of no importance in terms of the offense of insult. In case of making abstract ascriptions about the person without associating him with any event, insults may also be in question. Insulting, humiliating words expressing a bad quality or habit may still constitute the crime of insult, even though they are not associated with a concrete act or phenomenon. For example, if someone is called a “vagrant”, “despicable”, “scumbag”, there is no concrete act of imputation. Likewise, if the person is referred to as “rapist”, “dishonest”, “son of a bitch” in the abstract, the crime of insult occurs. The punishments to be given by the judge should be decided by taking into consideration the customs and traditions of the society.

In addition to insulting phrases, it is possible for these contents to contain threats. The subject of the threat is the notification that a person’s life or bodily integrity will be endangered, that a certain criminal act will be committed, that force will be used in general, that his honor and dignity will be damaged, his private life will be disclosed, or that any injustice will be committed. In terms of the occurrence of the crime, it is not important whether the threat (injustice, evil) occurs or not. It is sufficient for the threat to be objectively serious. In other words, the possibility that the evil that is the subject of threat will occur in the event that the desired is not fulfilled must exist objectively. In this case, it is clear that the person exposed to the threat will suffer moral damage due to the violation of his personal rights.

Personal rights can also be attacked through untrue and slanderous content. Due to such content shared, the Law No. 6639 and Law No. 5651 will be amended and a criminal complaint will be filed with the Public Prosecutor’s Office by the Telecommunication Communication Presidency against those who create and spread the content constituting the crime, and upon the request of the Prime Ministry and the relevant ministry, the Presidency will remove or access the content. prohibition decision will be made. There are also regulations regarding the punishment of internet service providers with judicial fines in case the content removal or blocking decisions are not fulfilled. In addition, it is possible for the insulted people to file a criminal complaint with the Prosecutor’s Office and demand the punishment of the people and, accordingly, demand material or moral compensation. In this case, social media platforms that do not have a supervisory responsibility have no responsibility, and all criminal and legal liability is only on users as content providers. Of course, the fact that these opportunities are provided does not prevent the spread of what is said about the victim to the masses. In fact, even if the content is removed because there is backup facility on most sites, these criminal content is reposted on social media under a different heading by users, and even users make fun of removal decisions, in which case the penalties are only theoretical. The best example that can be given to this situation is M.B. event. M.B. has repeatedly applied for the removal of content through the Criminal Judgeships of Peace, and although the relevant titles have been removed from the sour dictionary pursuant to these decisions, since there is still a Google search using the words “lawyer, sour dictionary, gassing”, information about the incident and the applicant’s information on social media can be found on social media. Discourses that harm personal rights can be easily reached. In addition, it is not easy to detect the person/user who violates the personality rights because the users on social media do not have to give their real identity information, and some users often hide behind virtual identities because they access the social media through pseudonyms and fake accounts. In such cases, although the IP information of the individuals can be asked from the social media services provider, especially with the people who committed this crime abroad and terrorism, etc. It should be noted that this information is not given except for important crimes.

5. PUBLIC PRESSURE AND THE INFLUENCE PROCESS OF THE JUDICIARY

As it is often stated in this article, freedom in social media does not mean that other rights and freedoms are not respected, for example, it does not include the violation of the rights of the accused or the attempt to influence the proceedings by public pressure. One of the topics that social media is most interested in is crime news. Especially in our country, it is demanded by the society to know the crimes and who the accused are, and these demands are met through the media. However, it should be noted that this interest has started to pose a danger to the cases at the investigation and prosecution stage. This danger is not only a violation of personal rights, but also affects the honesty of the judiciary.

For example, in a criminal case that attracted great public attention in Denmark in 1979, the acquittal of the defendants was demanded in the newspaper’s headline and editorial on the day of the verdict. The Copenhagen City Court fined the editor-in-chief of this newspaper for influencing the jurors with the publication in question. In addition, in a drug trafficking case that attracted public attention in Turkey, it was decided to stop the broadcast of a television series inspired by the subject of the case until the conclusion of the case, on the grounds that the trial was affected. In the decision to stop the broadcast, the court states that “the scenario in question and broadcasting the case, aside from violating the personal rights of the accused in the case, is of a nature that will cast a shadow over the safe conduct of the case in terms of the public, and that it impresses the witnesses and experts. In another case, in the defense of the defendants, It is seen that the media complain about the fact that they are tried and sentenced before the court, and that the media carry out extrajudicial executions.These examples reflect the importance of the issue (Centel, 1994).

As stated in the European Convention on Human Rights, an honest trial is a trial in which the rights of the accused and the victim are not violated. They have the right to be tried publicly, within reasonable time, by reciprocal defense and claims, and to be tried in accordance with the principles of presuming innocent until the final verdict is announced. must be. However, prejudiced, biased, misdirecting and influencing the masses and contrary to the aforementioned principles through social media cause people to be tried before the public without being tried by the competent authorities. In order to investigate this issue, a jury was formed by conducting an experiment in the USA, biased newspaper news and opinions on the subject of the case were shown to some of the subjects in the jury, and objective news was presented to the other part. Among the subjects who watched the trial regarding the case, those who read biased news exhibited behaviors that were more likely to consider the accused guilty when it was their turn to vote. Although it was repeatedly stated in the experiment that the news in question was not taken into account, it was clearly revealed that these warnings were not taken into account by the jury members. Although it is thought that judges will not be affected by the publications in question thanks to their professional education and experience, it is undoubtedly a fact that judges are human beings and that even the slightest doubt in this regard should not be ignored in terms of the health and proper delivery of justice. For this reason, it will be possible to minimize the effects of this situation by taking various precautions. For example, strict compliance with the principle of confidentiality of the investigation and, when necessary, taking a confidentiality decision during the prosecution phase. Although there is a clear provision in the law that the investigation phase should be confidential, this situation remains in theory, and in practice, it is a fact that even the smallest detail is communicated to hundreds of people with a single click, especially by the parties who want to make propaganda, due to the unstoppable spreading effect of social media. Another principle is the obligation of the investigating authorities to remain silent. However, unlike the theory, since the journalists are given the opportunity to hide their news sources, it is possible for the members of the media to broadcast the issues that should not be disclosed by hiding the news sources that are obliged to remain silent. The prohibition of viewing at the trial is another precaution. However, with the widespread use of smartphones and social media, every issue that happens at the hearing, including audio recordings or images, can be easily shared by writing, often distorted. In order not to affect the flow of the trial, some broadcasting bans were also introduced by the press law. Accordingly, first of all, it is forbidden to publish the requests, indictments, decisions and any other documents related to the investigation before they are read in the public hearing or before the decision of non-prosecution is given. This regulation is highly criticized and it is claimed that the freedom to receive and impart information is restricted. However, since it is seen that publications that affect the court are not expressly prohibited in the law, it is argued that broadcasting that may affect the hearing without expressing an opinion on the decisions and actions of the court does not constitute a crime; Since the impartiality of judges must be ensured as a requirement of the fair trial principle, it is clear that this provision should be regulated in accordance with the purpose. On the other hand, with the press law, the prohibition of broadcasting information or pictures revealing the identities of all accused or victims under the age of eighteen should be provided to all accused and victims as a matter of purpose. Unfortunately, the state’s efforts to secure and control the boundaries of the media have failed. In fact, it is widely seen in our country that the public does not understand that there are legal reasons why the suspects are not sent to arrest as a protection measure, and that the judiciary loses its function if the person is not arrested, injustice prevails, and the public pressure policy carried out on the social media that people should seek their own justice can even decide to arrest the suspects. is a situation. As a result, lynching policies that grow like an avalanche day by day and cannot be prevented continue to be carried out by social media, completely ignoring the principles that no one can be declared guilty unless their guilt is determined by a judicial decision, and that no one can be blamed unless there is evidence that the acts that are considered a crime are real.

CONCLUSION
Although the law is also developing for the resolution of new fields that arise as a result of technological developments and the resolution of disputes that may arise with these fields, most of the time the arrangements made remain only in theory. In today’s world, where the use of social media has developed in an unstoppable way, it has become easier to commit insults, threats and other crimes over social media, to damage personal rights and even to affect the judiciary. Although regulations have been made in these areas, it is seen that these regulations partially work in daily life. Considering that social media has many effects such as rapid spread and directing the society in masses, it can be clearly seen that these regulations are only on paper. It is still not known how to prevent this situation, and it is thought that some measures should be taken to raise awareness of users first. However, since it is clear that this situation will not be sufficient, it is argued that new protection measures and deterrent penalties should be arranged. Otherwise, the chaos created by this growing and uncontrollable community, which considers itself superior to the law and judicial organs, will not be able to be stopped and individuals will become unprotected.

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