On February 6th 2025, at the regional court of Berlin (Landgericht Berlin II),Claimant Democracy Reporting International (DRI) has won a preliminary injunction against X (see politico). 

The platform must now enable unrestricted access (“unbeschränkten Zugang”) to publicly accessible platform data.

Background 

Claimant DRI is aiming at effective data access for signals of engagement (e.g. shares, likes etc. of certain tweets over time etc.) to study online discourse prior German election this month (link). DRI has gained attention with similar analysis in the context of other elections (e.g. Romania).

Some press reports about the case are a little bit missing the point of this case: It is not about data access in itself, it is about effective access. Because interestingly, the relevant X-data is publicly available, so one could say: Why sue? Why not just look at the tweets? 

But researchers need better, more effective access through APIs to automatically and systematically extract such data. Mysterious Art. 40(12) DSA helps: To give researchers more effective access than just manually looking at the data, e.g. by not preventing scraping (Maamar at Kraul, Das neue Recht der digitalen Dienste, 2023, § 4 Rn. 245). Recital 98 S. 1 DSA supports this assumption: Using data to understand systematic risks can hardly be done by manually looking at online interactions (as a normal user would do). And the Commission thinks so too, as it suspects a violation of Art. 40(12) DSA as follows: “X prohibits eligible researchers from independently accessing its public data, such as by scraping, as stated in its terms of service.” (link). 

Especially with X, some researchers mourn that Twitter had provided a pretty good API for data access, which X now has shut down.

Can Art. 40(12) DSA bring back “effective access”

The Berlin Court ruling

The court ruling is a preliminary injunction (LG Berlin II, 6.02.2025 – 41 O 140/25). The court issued it without prior oral hearing, and, as it seems, did not hear X during the proceeding (immediate order), which is possible in urgent cases. The court ordered X to enable unrestricted access (“unbeschränkten Zugang”) to publicly accessible platform data. Some press reports had a misunderstanding of the ruling: The court did NOT order a procedural fine of 6.000 Euro against X (as reported by politico), this is a misunderstanding (the value of the proceeding was set to 6.000 Euro, which is a basis for assessing lawyers and court fees).

Typical for injunctions, the written reasons are just a few sentences. Here are the 3 main points:

• In one sentence, they say that DRI is likely to have a claim under Art. 54, 40(12) DSA (likelihood of success on the merits). 
• Also in one sentence, the court explains its international jurisdiction to follow from Art. 7 Nr. 2 Brussels Ia. 
• The case is urgent enough for an injunction, as German elections are ahead this month and X had not responded to prior requests to data access.

What happens next: X now can request review by the same 1st instance court, and following that could appeal to the appellate court of Berlin.

Lessons beyond Art. 40(12) DSA

Obviously, researchers will welcome the court order. In my view, there are interesting implications which go far beyond Art. 40(12) DSA:

Specific performance as a remedy under Art. 54 DSA

The court implies  that if a platform violates a due diligence obligation, then – through Art. 54 DSA – the remedy is not just monetary compensation, but also to conduct the obligation in itself (specific performance). Through this logic, private litigation might force platforms, e.g., to put-back accounts (Art. 20(4) S. 2 DSA) or to block repeat-infringers (Art. 23(1) DSA). 

From a German perspective, this is not so surprising. However, some voices had doubted whether Art. 54 DSA could yield specific performance as a remedy, while others had supported this (e.g. NK-DSA/Raue, 1. Aufl. 2023, DSA Art. 54 Rn. 52; I had argued so in MMR 2023, 643). Of course, the exact contours of private enforcement through Art. 54 DSA still remain to be clarified in the future. 

(one a side note: This should be a wake-up call to DSCs too, as they often pretend not to have powers to order specific performance, e.g. a specific put-back, while of course through Art. 51(2)(b) DSA they have, as I had argued earlier in MMR 2023, 643).

A door towards “more” cross-border jurisdiction under Art. 7 Nr. 2 Brussels Ia?

If Art. 54 yields obligations of specific performance, this should go hand in hand with another substantial consequence: International jurisdictions of the countries of residence of recipients: Users must not go to Ireland to sue, but can sue “at home”.

The Berlin court assumes international jurisdiction under Art. 7 Nr. 2 Brussels Ia. This is in line with the ECJ’s broad understanding here: “It is the Court’s settled case-law that the concept of ‘matters relating to tort, delict or quasi-delict’ within the meaning of point 2 of Article 7 of Regulation No 1215/2012 covers all actions which seek to establish the liability of a defendant and do not concern matters relating to a contract …, that is to say, actions not based on a legal obligation freely consented to by one person towards another” (C‑59/19, para 23).

Let us assume that the ECJ will stick to this very broad and uncompromising understanding of Art. 7 Nr. 2 Brussels Ia (I have some mild doubts, but l leave them aside here). 

Now keep in mind that the DSA in many ways complements contractual obligations through statutory due diligence obligations (e.g. put-back, through Art. 20(4) S. 2 DSA). Until today, these contractual obligations (e.g. put-back) could establish international jurisdiction only through Art. 7 Nr. 1 Brussels Ia, which regularly lead to the country of residence of the provider (often: Ireland). With many platforms therefore, users need to sue in Ireland (see here and here for prominent cases).

Now where the DSA adds statutory due diligence (e.g. Art. 20(4) S. 2 DSA), this will lead to damages under Art. 54 DSA, and as we have seen with the Berlin ruling, a remedy of specific performance, which, again as implied in the Berlin ruling, would fall under Art. 7(2) Brussels Ia, and thus yield international jurisdiction for courts in the country of residence of the user.

I admit that there are still some complicated discussions possible, but the path forward as implied by the Berlin court is clearly raising chances to establish jurisdiction in your home country (side note: It would still be preferably to have a statutory clarification similar to Art. 79 II GDPR).