07/02/2024 | Writer: Yıldız Tar
Lawyer Kerem Dikmen, who objected against the court order issued in 2020 and applied to the Constitutional Court on behalf of the Hornet, criticized the delay in issuing the violation decision and said: “It is not fair.”
The Constitutional Court (AYM) ruled that the access ban on the Hornet, a gay dating application, violated freedom of expression. The Constitutional Court also ruled that the courts that rejected appeals against the decision had violated the right to an effective remedy.
In its decision of 22 November 2023, which was notified to the parties today, the Constitutional Court found that the blocking access on the website constituted a violation of the “freedom of expression” and the “right to effective remedy”. Among the decisions of the Constitutional Court, which consolidated hundreds of applications into a single file, is the access ban on the Hornet.
A gay dating application Hornet was blocked in accordance with the law no 2020/5617 by Ankara 8th Criminal Court of Peace on August 6, in 2020. Users were able to gain access to the application for quite a while, however Hornet was removed from App Store after a court order in August 2021.
The Hornet, which has over 3 million users in Turkey, brought a file against the access ban. The Court dismissed the objection of Hornet without reconsidering and conducting a hearing. Therewith the company made an individual application to the Constitutional Court via lawyer Kerem Dikmen.
AYM recalled the pilot judgement
AYM rendered a verdict regarding the application. Reminding that the Constitutional Court had previously issued violation decisions regarding Article 9 of Law No. 5651, which states that blocking access decisions should be carried out in case of violations of personal rights, that the court had a pilot decision on this issue and that they had expressed their opinion to the Parliament on the need to revise the law, the Constitutional Court emphasized that the article of the law should have a predictable clarity in the relevant decision it notified today:
“It should be taken into account that laws regulating the restriction of the Internet has to respond to ‘a clear, pressing and specific social need’ and be ‘proportionate to the legitimate aim pursued’.
Given the difficulties inherent in the nature of the Internet environment, the legislator’s intention to establish a procedure that is not directly linked to existing judicial procedures in the legal system is not unjustified. However, it is essential to remember that there must be ‘a measure of legal protection in domestic law against arbitrary interferences by public authorities with the rights safeguarded by the Convention’ in order to ensure the exercise of freedom.”
The Constitutional Court ruled that the blocking access on Hornet violated the right to freedom of expression and that the court’s rejection of the appeals without any concrete justification violated the right to an effective remedy.
Lawyer Dikmen: It is not fair that a decision on the 2020 obstacle ruled after so many years
Lawyer Kerem Dikmen, who represented Hornet in the application, evaluated this decision of the Constitutional Court to KaosGL.org as follows:
“The Constitutional Court had previously recognized the structural problem in this issue. Hornet is an application used by millions of people in Turkey, and it is not fair that an important decision about an application used by so many people is made so many years after 2020. This is a delayed decision. Grindr, a similar application, has been banned from access since 2013, while Kaos GL’s application regarding Grindr in 2015 has still not been rendered a verdict. We can say that this is an unfair situation in itself. I hope that this decision will prevent structural problems in other blocking accesses from leading to arbitrary practices.”
Kaos GL applied to the Constitutional Court
Kaos GL Association clamored against the court order considering prevention. Remarking that the prevention decision means exclusion of LGBTI+ existence from the society the association told: “This prevention, which was realized under color of avoiding violation of personal rights, means punishment of the communication channel of LGBTI+ community as a whole.”
Ankara 9th Criminal Court of Peace dismissed the objection without reconsidering. Remarking that previous objection related to the prevention decision was rejected, the court decided that “there is no room for decision” considering Kaos GL’s application.
Thus Kaos GL, applied to the Constitutional Court. The Constitutional Court has not yet rendered a verdict on the application.
Grindr is still blocked!
Access to the dating app Grindr was blocked by the Presidency of Telecommunications (TIB) in August 2013 as a protection measure. Kaos GL Association applied to the Constitutional Court to lift the access ban on Grindr, and the appeal was rejected by the Istanbul Anatolian 3rd Criminal Court of Peace in February (2014).
In a decision of 26 August 2013, the 14th Criminal Peace Court of Istanbul decided, on the basis of an allegation that the personal information about the complainant was used in order to create a fake account on a homosexual dating site (grindr.com), to block the access to the entire website from Turkey, considering that the website content was in breach of the prohibition of “obscenity” and “prostitution”. However, since the judgement did not specify which content on the website constituted obscenity or prostitution, only the presence of homosexual members was associated with prostitution and obscenity.
Translation: Selma Koçak
Tags: human rights, media
