- Background
On the evening of December 14th, 2022, Twitter suspended the accounts of numerous high-profile U.S. journalists without warning. Initially, the reason for these actions remained unclear. In a Twitter Space audio discussion that took place several hours later, Elon Musk referred to the latest change in Twitter’s «private information and media policy». This change prohibits the sharing of live location information and was put in place after the live location of Musk’s private jet was shared by the previously suspended account @ElonJet.[1]
The suspensions were followed by international outrage, especially within the EU, where the ECtHR has repeatedly asserted the importance of journalists as «public watchdogs» in the past:[2] Vice President of the European Commission Věra Jourová called Musk’s actions «arbitrary» and indicated that there were «red lines» and «sanctions».[3] France’s Minister for Digital Transition and Telecommunications Jean-Noël Barrot,[4] Germany’s Minister of Justice Marco Buschmann[5] and the German Foreign Office[6] expressed similar concerns. Two days after the suspensions, Twitter reinstated most of the accounts after nearly 59 % of Twitter users voted in favor of immediately lifting them in a poll conducted by Musk.[7]
- «Red Lines» in the EU and its Member States
In her tweet, Jourová mentioned two pieces of EU legislation: The Digital Services Act (DSA)[8] and the proposed European Freedom of the Media Act (EMFA).[9] The DSA, which will be applicable in principle from February 2024, provides far-reaching, mainly procedural, guarantees for users of social media platforms in order to protect them from arbitrary access restrictions.[10] The proposal for the EMFA, once approved, will further curtail the discretion of «very large online platforms» regarding restrictions on certain journalistic content.[11]
In addition, there are already national efforts to restrict the previously seemingly unlimited discretion of social media platforms: In 2019, for example, the German Federal Constitutional Court ordered Facebook to restore access to the page of the far-right political party Der III. Weg after blocking it just few months before the then upcoming elections to the European Parliament.[12] Likewise, the Court of Rome obliged Facebook to restore access to the previously blocked page of CasaPound Italia, a far‑right political movement.[13] Following the suspension of former U.S. President Donald Trump’s Twitter account, the Polish government has even announced a law to prohibit social media platforms from imposing such measures unless users violate Polish law.[14]
- The Approach in Germany
As far as the situation in Germany is concerned, the German Federal Court of Justice specified the requirements for the admissibility of the suspension of user accounts on Facebook in a 2021 judgment.[15] In principle, suspensions based on a violation of communication standards may be permissible only if the platform reserves a corresponding right in its General Terms & Conditions (GTCs).[16]
However, according to the German Civil Code, such a clause in the GTCs must not «unreasonably disadvantage» the user of the network «contrary to the requirements of good faith». Due to the third‑party effect of fundamental rights in Germany (the so-called Drittwirkung), users’ right to freedom of expression must be taken into account in assessing whether such a clause violates this prohibition.[17] Nevertheless, this does not mean Facebook (or any other social media platform) as a private corporation is bound by fundamental rights in the same way as a state. Rather, such platforms are accorded fundamental rights of their own, which must be considered when balancing conflicting interests.[18] The Court particularly emphasized the importance of the platforms’ commercial interest in creating an attractive environment for users and advertisers, so they can continue to collect user data and sell advertising space.[19]
In reconciling these conflicting positions, the Court ultimately derived two requirements for suspensions to be permissible: On the one hand, there needs to be an objective reason for the suspension of user accounts. Thus, the communication standards stipulated in the GTCs must be objective and verifiable.[20] On the other hand, the platform must oblige itself in its GTCs to inform the user of any intended suspension of their account as well as of the underlying reason and to grant the user the opportunity to make a counterstatement with subsequent redetermination of the case.[21] This procedure must generally be carried out before the intended suspension is implemented, although the GTCs may provide for narrowly defined exceptions thereto.[22]
If these requirements are not met by the platforms’ GTCs, the suspension clause is invalid, and an account suspension cannot be made on its basis. In the case at issue, the Court found the relevant clause in Facebook’s GTCs indeed to be invalid, as it did not provide the necessary procedural safeguards for users.[23]
Returning to the case of Twitter, it seems questionable whether its GTCs meet the requirements outlined above. Admittedly, in light of the few substantive requirements set out by the judgment in this context, it is conceivable that the violation of the prohibition on sharing live location information represents a suitable, objective reason for account restrictions (although it is debatable whether an immediate suspension constitutes a proportionate measure necessary for this purpose).
In any case, however, it appears doubtful whether Twitter’s GTCs comply with the procedural requirements.[24] The chapter regarding Twitter’s enforcement options states that they «notify people that they have been suspended». One could argue that this phrase implies that, contrary to the requirements stipulated by the Federal Court of Justice, such notification generally takes place only after the account has been suspended. Furthermore, the clause does not provide for users to be given the opportunity of making a counterstatement prior to the suspension. Allowing users to «appeal permanent suspensions» is not sufficient for this purpose, as it does not oblige Twitter to hear users before suspending them.
These assumptions are reinforced by the fact that the accounts of the journalists concerned were apparently suspended without any prior warning, making compliance with the aforementioned requirements seem very unlikely. Consequently, German courts would presumably consider this clause invalid, and an account suspension based on it therefore unlawful.
- Conclusions
In summary, we can discern a trend in Europe toward legally narrowing the previously almost unlimited discretion of online platforms such as Twitter in suspending their users. It is true that the mentioned EU regulations are not yet applicable and that we will have to see how much they will actually impact on platforms’ discretionary power. However, the example of Germany’s approach clearly demonstrates that some EU member states themselves have already used their legal doctrines in order to protect the fundamental rights of users. The analyzed German Federal Court of Justice’s judgment significantly limits the power of social media platforms by requiring an objective reason for suspending users and outlining a binding procedure for doing so. Thus – to some extent – anticipating the regulations that will be applicable in the future as a result of the EU’s efforts on a supranational level.
[1] M. Isaac – K. Conger, Twitter Suspends Accounts of Half a Dozen Journalists, in nytimes.com, 15 December 2022; P. Farhi, Musk suspends journalists from Twitter, claims ‘assassination’ danger, in washingtonpost.com, 16 December 2022; J. Abbruzzese – K. Collier – P. Helsel, Twitter suspends journalists who have been covering Elon Musk and the company, in nbcnews.com, 16 December 2022.
[2] ECtHR, Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland [GC], App. 931/13 (2017), 126 with further evidence.
[3] V. Jourová, tweet, in twitter.com, 16 December 2022.
[4] J. Barrot, tweet, in twitter.com, 16 December 2022.
[5] M. Buschmann, tweet, in twitter.com, 16 December 2022.
[6] Auswärtiges Amt, tweet, in twitter.com, 16 December 2022.
[7] E. Musk, tweet, in twitter.com, 16 December 2022.
[8] Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on a Single Market For Digital Services and amending Directive 2000/31/EC (Digital Services Act).
[9] Proposal for a Regulation of the European Parliament and of the Council establishing a common framework for media services in the internal market (European Media Freedom Act) and amending Directive 2010/13/EU.
[10] D. Buijs, The Digital Services Act and the implications for news media and journalistic content (Part 1), in dsa‑observatory.eu, 29 September 2022.
[11] A. Grünwald, Der European Media Freedom Act, in Zeitschrift für IT-Recht und Recht der Digitalisierung, 11, 2022, 919-920.
[12] Bundesverfassungsgericht, 22 May 2019, 1 BvQ 42/19.
[13] Tribunale di Roma, 29 April 2020, n. 80961/19.
[14] S. Walker, Poland plans to make censoring of social media accounts illegal, in theguardian.com, 14 January 2021.
[15] Bundesgerichtshof, 29 Juli 2021, III ZR 179/20.
[16] Ibid., 78.
[17] Ibid., 54.
[18] Ibid., 59.
[19] Ibid., 73.
[20] Ibid., 81, 82.
[21] Ibid., 85 et seq.
[22] Ibid., 87.
[23] Ibid., 90 et seq.
[24] The GTCs’ chapter regarding Twitter’s enforcement options reads as follows: «Permanent suspension: (…) When we permanently suspend an account, we notify people that they have been suspended for abuse violations, and explain which policy or policies they have violated and which content was in violation.
Violators can appeal permanent suspensions if they believe we made an error. They can do this through the platform interface or by filing a report. Upon appeal, if we find that a suspension is valid, we respond to the appeal with information on the policy that the account has violated» (https://help.twitter.com/en/rules-and-policies/enforcement-options).
