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Press release: Unlawful #TwitterSuspension

Spirit Legal LLP enforces claim for injunctive relief at the Landgericht Nürnberg-Fürth against the suspension of a Twitter account due to an election post

In a ruling on 7 June 2019 (ref. 11 O 3362/19), the Landgericht Nürnberg-Fürth decided that the social network Twitter is prohibited from temporarily suspending the account of a Twitter user on twitter.com due to the following statement published on twitter.com:

“Aktueller Anlass: Dringende Wahlempfehlung für alle AfD-Wähler. Unbedingt den Stimmzettel unterschreiben. ;-)” [Translation: “In light of recent events: urgent election recommendation for all AfD voters. Don’t forget to sign your ballot. ;-)”]

The Twitter platform had suspended the user’s account, justifying the suspension with the argument that the statement made by the user violated Twitter’s “Election integrity policy”. On behalf of the Twitter user, Spirit Legal LLP challenged this with an application for an interlocutory injunction.

In its subsequent ruling, the court found this suspension to be unlawful. One of the reasons for its decision was that, although Twitter might have a “right to ban someone from its ‘virtual’ premises” on its own platform, this right could not be exercised without limits. It argued that the platform operator’s powers were limited by the values set forth in Germany’s Basic Law (Constitution), in particular by the indirect third-party effect of the freedom of expression pursuant to Article 5(1) of the Basic Law.

The court goes on to explain:

“Taking into account the fundamental right of freedom of expression, a suspension of the claimant’s account in the present case is therefore not justified and should be prohibited. For this reason, it does not ultimately need to be determined whether the ‘Election integrity policy’ was effectively incorporated into the contractual relationship, since this too must in any case be interpreted in the light of the fundamental right of freedom of expression and, accordingly, does not cover the permissible expression of opinion in this case.”

Dr Jonas Kahl, an attorney-at-law specialising in copyright and media law at Spirit Legal LLP, comments:

“The Landgericht Nürnberg-Fürth made it clear in its ruling that platforms like Twitter cannot establish their own rules on a whim, but must take into account fundamental rights such as freedom of expression under Article 5(1) of Germany’s Constitution. Since this was not the case here, the court interpreted Twitter’s policy on the integrity of elections in the context of the fundamental right to freedom of expression, and prohibited the platform from suspending the user. We understand that this is the first decision by a German court to have had to deal with the ‘Election integrity policy’ introduced by Twitter in April 2019. The Landgericht Nürnberg-Fürth has underlined the fact that a person is obviously protected by freedom of expression if they ironically advise AfD voters to sign their ballot papers.”

Decision of the LG Nürnberg-Fürth of 07.06.2019 (Az. 11 O 3362/19) in full text

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