Is Elon Musk now failing at this Frankfurt court?

When Elon Musk took over Twitter at the end of October, he rushed to announce that the short message service would of course comply with national laws regulating hate content - now that promise is being put to the test for the first time in a case before the regional court in Frankfurt. It turns out that even before the takeover, Twitter was not willing to comply with all German internet laws - and even concluded a kind of standstill agreement with the federal government.

On Thursday, the judges in Frankfurt heard an urgent application against tweets about the anti-Semitism commissioner of Baden-Württemberg, Michael Blume. Among other things, Blume complains in his application of tweets that allegedly accuse him of having an affair with minors.

46 corresponding tweets were originally reported to Twitter, with three of them Twitter gave in - for the rest, however, Twitter's moderators rejected the request, explains Josephine Ballon from the organization HateAid, which supports Blume in his proceedings. “Instead, Twitter quickly blocked the corresponding user account. But of course it's not the same," Ballon says.

Blume's legal battle with Twitter is notable -- and could have far-reaching ramifications. Because Elon Musk is extremely critical of all account suspensions that were imposed before his takeover for violating Twitter guidelines. He has already announced in a tweet that he is considering a kind of general amnesty for all blocked user accounts.

Blume's lawyer, the Würzburg media lawyer Chan-jo Jun, then announced that Musk's statement would be included in the proceedings. Because this calls into question all previous moderation decisions made by Twitter.

Any legally relevant statements that had long since disappeared would be visible online again. This is another reason why a decision in Frankfurt could force Twitter in Germany to react. Lawyer Jun was particularly bothered by the fact that Twitter does not provide for a regular procedure for objecting to moderation decisions that have been made, such as in the case of the 43 tweets against Blume.

The problem is well known: Anyone who reports a tweet will then receive an email from the moderation team, in which decisions that are often difficult to understand are announced. The same applies to the authors of reported tweets - they too can only accept decisions from Twitter's moderation team.

However, this is regulated differently in the German Network Enforcement Act, Section 3b. There, the legislator provides for a far-reaching so-called right of counter-presentation: Both sides, the reporting party and the reported user, should be able to comment on the matter and, for example, be able to explain the context of a case of bullying.

However, Twitter – unlike YouTube or Facebook – does not allow exactly this possibility. Setting up such an objection procedure is time-consuming and would entail considerable costs for Twitter.

When lawyer Jun complained to the court about the lack of such a procedure, Twitter surprisingly announced that an agreement had long been reached with the federal government. According to the document Jun quotes, the federal government has assured Twitter "that it will not order any measures that would oblige it to apply Section 3b."

When asked by WELT, the responsible Federal Ministry of Justice explains that this concession results from a lawsuit by Twitter against the regulation of the NetzDG: "In the urgent proceedings brought by Twitter, the court suggested the submission of a standstill commitment." Therefore, the ministry will wait until the decision of the Cologne Not enforce those obligations under the NetzDG against which Twitter is currently suing.

This is remarkable, since the same court has already declared the corresponding paragraph 3b permissible in a similar case involving Meta and Google - the federal government would therefore take a relatively small risk if Twitter were now forced to set up a corresponding function.

"It's remarkable that Twitter is playing for time by taking legal action and thus evading its obligation to make a counter-presentation," comments Hate Aid lawyer Josephine Ballon. The group could pull the decision through the instances until 2024, anyway, when new EU law makes the Netz-DG obsolete. The federal government seems to be playing along and is not imposing any fines on Twitter for the time being.

But Twitter could have miscalculated: If the Frankfurt judges decide against Twitter in the case of Blume that an account blocking alone is not sufficient, then the group would have to revise a whole series of moderation decisions. The court will only announce the written decision at the beginning of December – but the judges already indicated during the oral hearing that they would rather vote against Twitter's legal opinion on the matter.

It remains to be seen whether Twitter would be able to implement a corresponding decision with the new Spar staffing. In extreme cases, the decision could mean the end of Twitter in Germany - namely if Twitter were unable to implement the decision due to a lack of staff and the court then had the further operation in Germany prohibited for the time being.

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