Compensation Claims Arising from Social Media Posts

This article is an English translation of the Turkish original published by the office.

With advancing technology and digitalisation, social media has become a platform where people express their thoughts freely. But, as is well known, every freedom is limited by the freedom of others. When commenting on social media, one must not harm the personality rights of others. Ideally, everyone would exercise freedom of expression with respect for the personality rights of others; in practice, however, posts are sometimes made carelessly in a way that harms them. Insulting, abusive or degrading posts may later come back as compensation claims. In this article we look at compensation lawsuits arising from social media posts.

Legal protection against attacks on personality rights

The rights of persons who claim that their personality rights have been attacked are regulated in Articles 24 and 25 of the Turkish Civil Code No. 4721:

Article 24 — A person whose personality rights are unlawfully attacked may ask the judge for protection against those who attack them. Every attack on personality rights is unlawful unless justified by the consent of the person whose rights are harmed, by an overriding private or public interest, or by the exercise of a power conferred by law.

Article 25 — The claimant may ask the judge to prevent a threatened attack, to stop an ongoing attack, or to establish the unlawfulness of an attack that has ended but whose effects continue. The claimant may also ask for the correction or the judgment to be notified to third parties or published. The claimant’s right to claim pecuniary and non-pecuniary damages and to claim the profit obtained through the unlawful attack under the rules on agency without authority is reserved. The claim for non-pecuniary damages cannot be assigned unless accepted by the other party, and does not pass to heirs unless asserted by the deceased. The claimant may bring an action for the protection of personality rights at the court of their own domicile or that of the defendant.

The person claiming an attack may therefore seek prevention, cessation, a declaration of unlawfulness, publication of the judgment or a correction, and pecuniary or non-pecuniary damages. Here we focus on the damages claim.

Compensation for attacks on personality rights

Compensation is money paid in return for damage — an obligation imposed to remedy damage to a person’s property or personal sphere. If a person’s assets are reduced, the reduction can be calculated and is covered as pecuniary damage. Damage to the personal sphere is non-pecuniary (moral) damage. A person who suffers insults, threats, abuse or degradation on social media that unlawfully violates their personality rights is therefore entitled to sue for non-pecuniary damages to compensate the pain and suffering caused. In general, the conditions are:

• an attack on one of the personal values;
• the attack must be unlawful;
• non-pecuniary damage must result;
• the damage must result from fault or from a case of strict liability;
• there must be a causal link between the attack and the damage.

How is the amount of moral damages determined?

The purpose of non-pecuniary damages is to remedy, as satisfactorily as possible, the harm suffered by those whose personality rights were attacked. Although the principle is to offset the pain with an appropriate sum, the law sets no fixed amount; the judge determines it according to the circumstances. The severity of the violation and of the harm are taken into account, and more or less compensation may be awarded depending on the intensity of the harm.

Besides the circumstances of the case, the judge considers the claimant’s situation — physical characteristics, professional and social position, and any fault on their part. The defendant’s situation also matters: because of the satisfaction and compensation functions of non-pecuniary damages, the defendant’s degree of fault is important, and a higher degree of fault increases the amount.

The approach adopted by the Court of Cassation is to determine a fair amount in light of the specific circumstances. No statutory provision sets concrete criteria for calculating non-pecuniary damages, because, unlike pecuniary damages, they cannot be calculated with concrete data and are left to judicial discretion.

Where is the case filed?

Identifying the competent court matters, since rules on subject-matter jurisdiction are of public order and can be raised at any stage or by the judge of their own motion. Under Article 2 of the Code of Civil Procedure, the competent court is the civil court of first instance. Under Article 25(5) of the Civil Code, the court of the claimant’s domicile or the defendant’s domicile has territorial jurisdiction.

The “compensation trap” as an abuse of compensation law

With the spread of social media, insult cases and related compensation claims have increased noticeably. Unfortunately, some people deliberately publish provocative posts designed to elicit insults. It has been alleged publicly that certain social media personalities share controversial content to anger their followers and then systematically sue those who respond negatively. This is discussed as an abuse of compensation law and has given rise to the term “compensation trap”. Claiming compensation in this way is contrary to the principle of good faith in Article 2 of the Turkish Civil Code, and judges and prosecutors increasingly give no weight to complaints following such posts. In a reported decision of non-prosecution by the Ankara Chief Public Prosecutor’s Office, it was noted that the complainant was a party to numerous files, posted tweets designed to provoke insults and then sought to benefit through lawsuits, effectively making this a profession; it was therefore decided that there was no need to prosecute. (Source: Anadolu Agency, Teyit Hattı.)

Compensation claims arising from social media comments are among the most current legal problems of the digital age. Each case requires its own legal assessment; just as in the real world, insulting someone online is unlawful, and a person insulted on social media can document it and take legal action. But if a person constantly provokes others to insult them and uses this deliberately to obtain compensation, different legal consequences may follow — good faith, honesty and reliability are fundamental principles of law, and under a universal legal principle no one may profit from an unjust situation of their own making.

Whether you need to pursue your rights after being insulted on social media, or to defend yourself in a compensation claim brought after you reacted to a provocative “compensation trap” post, advice from an experienced lawyer is in your interest.

Türker Law Office provides legal representation and advice on pecuniary and non-pecuniary compensation claims arising from alleged violations of personality rights through social media posts, and on the defence against such claims.