Proceedings for data access: X has judges replaced

The proceedings concerning access to data from the short messaging service X (formerly Twitter) take a surprising turn: The Berlin Regional Court has removed the judge responsible from the injunction proceedings because he could be biased. This was confirmed by a court spokeswoman at the request of heise online on Friday (case no. 41 O 140/25 eV).

On 7 February, at the request of Democracy Reporting International (DRI) and the Gesellschaft für Freiheitsrechte (GFF), the regional court issued a temporary injunction ordering X to grant the organizations"unrestricted access to all publicly available data on Platform X" via an online interface because of the European Digital Services Act (DSA).

The DSA stipulates that so-called very large online platforms – which include X and Twitter – must provide API access to data for research purposes. At the end of 2023, the EU Commission initiated proceedings against X concerning, among other things, the provision of data for research purposes.

Objection and request for recusal

X filed an appeal against the interim injunction at the beginning of the week. The company's lawyers also filed an application for recusal against the judge, which the chamber granted on Thursday. "The judge does not actually have to be biased to recuse himself," explained the court spokeswoman. Rather, it is also sufficient if a party could be concerned that the judge is not impartial.

The chamber had come to the conclusion that this concern could arise "as the judge in question had worked for a company supporting the applicant in the past", the court spokesperson continued. Despite the change of judge, the original decision stands for now. Company X's appeal will now be heard on February 27 under the chairmanship of another judge of the chamber.

According to research by heise online, the judge who has now been removed from the proceedings briefly worked as a trainee lawyer for the GFF in 2023. The GFF confirmed this on request. "The judge for whom the regional court granted the application for recusal completed three months of his training as a legal trainee at GFF in early 2023," explained a GFF spokesperson, emphasizing that the legal trainee had not dealt with the DSA or the lawsuit against X at the time, which had not been planned to date.

Effects on the proceedings open

"The GFF and DRI's lawyers were not aware that the proceedings had been assigned to a former GFF trainee lawyer before the interim injunction was issued," the GFF spokesperson continued." The impact of the change of judge on the proceedings is not yet foreseeable. "We do not expect the decision on the application for recusal to have a negative impact on the further decision in the case."

The GFF is a civil rights organization that was founded in 2015 with the involvement of former criminal court judge Ulf Buermeyer and Green politician Malte Spitz. Buermeyer stepped down as a judge in the summer of 2024 to devote himself entirely to his work on the GFF board and the well-known podcast "Lage der Nation", which he runs together with journalist Philip Banse. Until 2016, Buermeyer was also an occasional author for heise online and c't and most recently a guest on the data protection podcast "Auslegungssache".

(vbr)