With the development of technology, changes in communication styles create new legal facts. One of these is the evidence nature of social media posts. Social media, which has an increasing place in our lives every day, has not only changed the forms of communication, but also has become both the source of and evidence in the resolution of legal disputes.
According to Civil Procedure Law, evidence is a tool used to prove whether events that will affect the resolution of disputes have occurred or not. Pursuant to Article 192 of the Code of Civil Procedure, in cases where the Code does not stipulate the obligation to prove with a specific evidence, other evidence not regulated in the Code may also be used. Therefore, in cases where the Law does not impose the obligation to prove with specific evidence, the parties may use any evidence obtained by lawful means as a means of proof, provided that it is reasonable and logical.
The Supreme Court ensures that the evidence is obtained by lawful means and that the privacy of individuals’ private lives is protected in cases where the obligation to prove with specific evidence is not foreseen. Evidence that meets both of the aforementioned conditions will have the quality of legal evidence in terms of events for which the obligation to prove with a specific evidence is not foreseen.
In Turkish law, a free evidence system is accepted for divorce cases. In other words, the parties can prove the facts on which they base their claims with all kinds of evidence that is reasonable and logical and obtained by lawful means.
Social media posts can be used as evidence in divorce cases, provided that they are obtained by legal means. For example, evidence obtained by the plaintiff by cracking the password of the defendant spouse’s social media accounts or by accessing the social media accounts without the defendant spouse’s consent cannot be used as a means of proof since it is unlawful evidence.
In Accordance with the Merits No. 2016/14742 and Decision No. 2017/2577 of the 3rd Civil Chamber of the Supreme Court of Appeals;
First of all, the court’s decision relied on; It is necessary to determine whether the evidence of the plaintiff, which consists of video recordings (allegedly taken from Facebook and WhatsApp) by the alimony obligor, is legally valid and can be used as a basis for the decision.
189/2, titled “Right of Proof” of the Civil Procedure Code No. 6100, which came into force on 01.10.2011. In the article; “Evidence obtained illegally cannot be taken into account by the court in proving a fact.” With this provision, it is clearly accepted that evidence obtained illegally will not have the power of proof.
Thus, the legal framework of the evidence-related aspect of the right of proof in Civil Trial has been drawn; The principle has been introduced that any evidence that may be put forward in a case must be obtained through legal means and, in other words, it must not be prohibited evidence.
According to the aforementioned regulation, it is regulated that evidence that is understood to have been obtained illegally cannot be taken into account by the court in proving a fact, and that the way in which the evidence presented by the parties during the trial was obtained is taken into account ex officio by the court, and that this evidence was obtained by legally legitimate means and methods, and that the evidence is not included in any case. In case it is determined that the evidence was obtained illegally by any means, even if the other party does not raise an objection on this issue, the court decides that the evidence presented is not permissible and the principle of not being evaluated within the scope of the file has been adopted.
In order for an evidence to be accepted by the court, it is necessary that the evidence was not created irregularly or illegally and that it was not obtained illegally. Since the scope of prohibited evidence includes evidence created illegally and evidence obtained by illegal means and methods, it is no longer possible to accept evidence accepted within this scope as lawful and legitimate evidence.
In addition, it may be thought that the shares made on social media accounts can only be used as evidence by the owner of the account or by people in the same sharing environment (Facebook / WhatsApp). In other words, if you create a fake profile and share posts, or if posts made on personal profiles without the knowledge, consent and permission of the account owner are presented as evidence, these will be subject to Article 189/2 of the Code of Civil Procedure No. 6100. It must be accepted as unlawful evidence within the scope of the article.
As can be understood from the said decision, the Supreme Court is of the opinion that the shares made on social media accounts can only be used as evidence by the owner of the account or by people in the same virtual environment. In other words, if the shares made without the knowledge and permission of the account owner are intended to be used as a means of proving facts, the shares in question will be considered unlawful evidence.
It should be noted that if the posts are made visible to everyone, they constitute legal evidence. Likewise, messages sent by one spouse to the other spouse are also legal evidence. Therefore, they can be used to prove a fact. However, it is debatable whether the evidence obtained by one of the spouses by accessing the other spouse’s social media accounts without permission or by blocking the password is legal. As can be understood from the decision of the Supreme Court of Appeals, the Supreme Court of Appeals is of the opinion that the evidence obtained in this way is against the law. According to the Supreme Court, the evidence obtained in this way violates the right to privacy.
However, the General Assembly of the Supreme Court of Appeals ruled in one of its decisions that the spouses live together and therefore their private lives are intertwined. According to the decision in question, it was ruled that if one of the spouses finds the other’s letters, diaries or photographs at home without force or threat, these are legal evidence, even if they relate to the private life of the other party. In the light of this decision, there are also opinions claiming that the boundaries of the private lives of the spouses within the marriage union have become blurred, and therefore the evidence obtained in this way will not be against the law.
REFERENCE
Merits No. 2016/14742 and Decision No. 2017/2577 of the 3rd Civil Chamber of the Supreme Court of Appeals
Code of Civil Procedure and Related Legislation