Abstract:

The crime of “accessing or remaining in an information system” is regulated in Art. 243 of the Turkish Penal Code (TPC) under Section 10 which carries the title of “Crimes in the Field of Informatics” which is itself regulated under the Third Section of the penal code which is entitled “Crimes against the Society”. In this study, the crime of “accessing or remaining in an information system”, which was not laid down in the former Penal Code no. 765 and which has been defined in the new TPC no. 5237 as unlawfully accessing or remaining in an information system or part of it has been analyzed in the framework of the criminal law theory predominant in the new penal code, under a theoretical basis and in the perspective of the case-law of the Court of Cassation. In reality, Article 243 of the Turkish Penal Code contains two types of offenses. That is, the first three paragraphs of Article 243 regulate the crime of accessing or remaining in an information system whereas the fourth paragraph punishes the act of unlawfully monitoring through the use of technical devices of data transfer between information systems or within an information system. For this reason, the crime of monitoring the transfer of data through the use of technical devices added on 24 March 2016 as the last paragraph of TPC Art. 243 through Art. 30 (4) of the Law on the Protection of Personal Data has been analyzed under a separate section of this article with the same method indicated above.

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