Case Summary and Outcome

A Dutch Court found that X (formerly Twitter) breached its contractual obligations and the Digital Services Act, 2022, by unjustly restricting a user’s account and failing to provide adequate reasons for the restriction. After X restricted the account when the user posted articles critiquing European policies relating to child pornography, the user asked X for the reason for the restriction, which he believed constituted a “search (suggestion) ban”. X responded that there had been an automatic restriction which, on review, had been incorrect, and it reinstated the user’s account. Although the Court acknowledged that X had not violated the Digital Services Act’s provisions concerning account restrictions as the user had eventually received the necessary information, it did find that X failed to provide an effective communication channel. The Court awarded damages for lost subscription fees paid during the restriction period and legal costs and mandated X establish a compliant contact point within two weeks, with a daily penalty for non-compliance. 

Facts

On October 13, 2023, Danny Mekić, an Amsterdam-based researcher and PhD Candidate in Leiden posted an article on his X (formerly Twitter) account, titled “European Commission misleads citizens with disinformation campaign and illegal advertisements,” which was published in Volkskrant, a Dutch based news outlet. Another post on Mekić’s account referred to an article from NOS.nl dated October 11, 2023. The post criticized European plans against child pornography, quoting another user and linking to a news article and read: “The chats of hundreds of millions of people will soon be scanned to track down a relatively small number of criminals, no matter how bad.”

Mekić had been using X (formerly Twitter) since 2008 and had subsequently obtained a Premium account which gave him some  additional features for his account for a fee of $9.68 per month. X’s General Terms and Conditions (GTC) were applicable to Mekić’s use of the platform, including the Paid Services. The GTC require users to comply with the X User Agreement at all times and it allows X to suspend or terminate access to Paid Services for various reasons, including breaches of the Terms or the User Agreement.  X also reserves the right to modify or discontinue Paid Services without liability and without notice. 

On October 13, 2023, a third party reported that Mekić’s account was no longer findable on X and Mekić later discovered that a “search (suggestion) ban” had been imposed on his account, making it unsearchable by users who do not already follow him. That day Mekić contacted X via email to inquire about the “search (suggestion) ban” and to request assistance or clarification. On October 15, 2023, Mekić followed up with another message to X via email and written notice of default, reiterating his concerns.

On October 15, 2023, X responded, acknowledging Mekić’s email but providing no specific resolution. The email indicated that a specialist would review the request and that he should monitor the item in question. Subsequently, on November 14, 2023, X communicated to Mekić that its automated mechanisms had detected posts potentially associated with “Child Sexual Exploitation”, leading to a temporary account-level restriction. It also mentioned safeguards to avoid restrictions on posts by journalists or researchers.

In a letter dated January 12, 2024, X’s authorized representative informed Mekić that the post of October 11, 2023 led to the temporary restriction. After further investigation, X concluded that the post did not violate the platform’s rules, and the restriction was lifted. Mekić was informed that no further restrictions were applied to his account.

Mekić filed a Claim Petition against X before the Amsterdam District Court alleging a violation of the Digital Services Act, 2022 (DSA). 

Decision Overview

Judge E. Pennink heard the case and delivered the decision. The primary issue before the Court was whether X had violated the provisions of the DSA. 

Mekić argued that X had breached its obligations towards him and acted unlawfully. He submitted that X had failed to comply with Article 17 of the DSA by not providing a statement of reasons regarding the reason, scope, and duration of the restriction imposed on his account. Mekić also argued that X had violated Article 12 of the DSA and comparable provisions of the e-commerce directive by not maintaining an effective contact point for direct and rapid communication with its users. Additionally, he sought damages of $1.87 (the equivalent of his subscription fee for the period of his account’s restriction), arguing that X had failed to fulfill its agreement by reducing the visibility and discoverability of his account and posts without notification, and so by making his account and tweets virtually untraceable, X had breached Article 17 of the DSA. Mekić sought an order that X reinstate the agreement and immediately lift any negative restrictions on his account and messages.

X argued that Mekić’s claims were not suitable for treatment under the European Small Claims Procedure (EPGV) Regulation – a procedure designed to simplify cross-border claims under €5,000. It argud that because the claims could not be classified as minor, as it was not plausible that the estimated value of the claims was less than €5,000.00 and that although the monetary claim was minor the other claims held a value that far exceeded this amount. It submitted that, for instance, establishing an effective point of contact would require an investment significantly higher than €5,000.00 and X also argued that a declaratory judgment constituted a claim of unspecified value. X maintained that Mekić’s claims were not minor in qualitative terms, noting that the EPGV Regulation was intended for simple cases of minor interest, and pointed out that the nature of the form suggested that the European legislator envisioned a procedure requiring minimal substantive explanation. At the hearing, X added that the absence of an appeal or the possibility of submitting preliminary questions indicated that the procedure was not sufficiently mature. X contested the claims on the merits, which defenses they intended to address if necessary in the assessment of the various claims. 

The Court assessed X’s argument that Mekić’s claims were too complex for the EPGV Regulation and clarified that the EPGV Regulation’s objective is to simplify procedures rather than restrict them to simple claims and emphasized that complexity does not disqualify a claim from being handled under the regulation, provided the financial interest remains within the €5,000 limit. The Court also rejected X’s additional argument that the potential broader impact of the case on other procedures should factor into the financial interest, and held that such an interpretation would undermine the purpose of the EPGV Regulation by disqualifying small claims against large corporations due to their potential implications. 

The Court found that X had breached its contractual obligations by restricting Mekić’s account functionalities, which constituted a significant part of the agreed service. Despite X’s assertion that its general terms and conditions allowed for such restrictions, the Court deemed these terms unfair under the Unfair Terms Directive (93/13/EEC), as they permitted X to unilaterally modify or suspend services without valid reason. The Court highlighted that consumer protection laws, including the directive on unfair terms, remain applicable even under the DSA. Given the breach and the limited financial scope of the claim, the Court ruled that Mekić’s request for a declaratory judgment was admissible under the EPGV Regulation, as the claim did not exceed the prescribed financial limit. 

The Court examined whether X acted unlawfully by failing to comply with the obligations set out in Article 17 of the DSA. Mekić had argued that X had breached Article 17 by not providing clear and specific reasons for restricting the visibility of his account, as required under the DSA, and the Court agreed, noting that X ’s restrictions on the account visibility fell under the provisions of Article 17, which mandates hosting service providers to justify such actions. The Court found that X’s notifications to Mekić did not meet the requirements of Article 17 as they were too vague and lacked the necessary information, such as the reasons for the restrictions and the legal basis for the decision. 

However, the Court ultimately did not grant Mekić request for a declaratory judgment, as it found that Mekić no longer had a clear interest in such a declaration as he had since been informed of the reasons for the restrictions, and no damages were demonstrated. Consequently, the Court declined to issue the requested declaration of unlawfulness, rendering the additional argument regarding a breach of Article 12 of the DSA unnecessary for further consideration. 

The Court also dismissed Mekić’s claim for compliance with Article 17 of the DSA, as he had already received all necessary information regarding the measure imposed by X . The Court found that Mekić failed to specify what additional information he was still missing. Although X’s communication lacked details about redress options, including internal complaint mechanisms and legal recourse, the Court noted that Mekić’s pursuit of legal action against X indicated that he no longer had a substantial interest in this information. Consequently, the claim was deemed unnecessary and dismissed. 

In respect of Mekić’s argument that X violated Article 12 of the DSA by failing to provide an effective means of communication because X’s contact points were insufficient and difficult to access, the Court found that X did not meet the DSA’s requirements for rapid, direct, and efficient communication despite X’s assertion that it had a functional Help Center and a dedicated email address. The Court emphasized that merely providing an email address was inadequate, especially since Mekić had demonstrated difficulties in using X’s contact forms and locating relevant information. The Court noted that X’s responses to Mekić were neither timely nor substantive, and so failed to meet the standards set by Article 12 of the DSA. 

The Court concluded that X had not made reasonable efforts to ensure timely and effective communication, as required by the DSA, and thus upheld Mekić’s claim. However, the Court limited the scope of the relief, stating that X must provide Mekić with an effective contact point. The Court also imposed a reduced penalty payment on X to incentivize compliance, noting that the penalty was proportionate to Mekić’s interests and not subject to the financial limits of the EPGV Regulation. 

Mekić’s claim for damages was granted, as the Court found that X had not fully complied with its agreement, justifying compensation for the subscription fees paid during the period when restrictions were imposed on Mekić’s account. Since X did not contest the calculation or amount, the Court awarded the applicant $1.87 in damages. However, the Court dismissed Mekić’s claims for full compliance with the agreement and termination of the restriction: since there was no evidence that new restrictions had been imposed on Mekić’s account after the initial restriction was lifted in October 2023, the Court determined that X was in full compliance with the agreement and that the lack of any current restrictions on Mekić’s account meant there was no ongoing issue, rendering these claims unnecessary.

In conclusion, the Court found X in breach of contract and ordered it to pay $1.87 in damages to Mekić and required X to establish a compliant contact point within two weeks, with a daily penalty of €100.00 for non-compliance, capped at €100,000.00. The Court awarded Mekić €162.43 for legal costs, including travel, fixed fees, and mailing expenses.