DR. SARAFI secures a verdict against Twitch at the Braunschweig Regional Court and unblocks KuchenTV channel

Our client acts publicly on the Internet as a live streamer, content creator and social media influencer under the pseudonym “KuchenTV”. Over a million people follow him on YouTube, and thanks to the strong interest in his content, our client has gained over 350,000 subscribers and built up considerable reach on the Amazon subsidiary platform Twitch.

After KuchenTV was critical of another streamer on the Twitch platform and sometimes made fun of her, he was banned from the Twitch platform for an indefinite period of time. Twitch stated across the board that our client had put the other streamer under psychological pressure. Our client himself, however, exercised his constitutionally guaranteed right of retaliation, because he did not talk about just any person, but about someone who repeatedly addressed our client himself and spoke negatively and derogatory about him.

After we asked the Twitch platform to unblock it out of court and explained to them that the facts were not as one-sided as presented, the Twitch platform refused to unblock our client's account. To our announcement that it would take legal action, Twitch responded confidently by saying that German law did not apply, as US law had been agreed in the Twitch Terms and Conditions. Twitch believes that it can do this to streamers, whom it describes as “professional streamers” — i.e. those who earn money with Twitch — because they would not act as consumers. This is what the Twitch terms and conditions state:

You and Twitch agree to resolve any dispute arising out of these Terms of Use or your use of the Twitch Services. The exception is that you and Twitch are not required to resolve disputes in which either party seeks equitable or other remedies for the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets, or patents. IN ARBITRATION, YOU DON'T HAVE TO SUE IN COURT OR TAKE PART IN A JURY TRIAL. You and Twitch agree to notify each other in writing of any dispute within thirty (30) days. Communications to Twitch should be sent to Twitch Interactive, Inc.: Legal, 350 Bush Street, 2nd Floor, San Francisco, CA 94104, USA. You and Twitch further agree as follows: that you will seek out-of-court settlement prior to any claim for arbitration, that all arbitrations will take place in Santa Clara County, California, USA, that arbitrations will be conducted confidentially by only one arbitrator under the JAMS Rules, and that the state or federal courts in Santa Clara County, California, USA, are the exclusive venue for all appeals against arbitration decisions and all proceedings between the parties, which are not subject to arbitration. With the exception of the group proceedings and remedies set out below, the arbitrator is entitled to grant any remedy that would also be available in court.

(…)

Disputes between the parties are governed by this Agreement and the laws of the State of California and applicable U.S. laws, excluding principles of conflict of law, which may require the application of the laws of another jurisdiction.

Contrary to what is sometimes suggested by the public, this was also the legal focus: It is primarily a matter of deriving the jurisdiction of German courts and breaking down the choice of law, jurisdiction, conciliation and arbitration clauses contained in the terms and conditions, including among entrepreneurs.

Various courts had previously denied their jurisdiction against Twitch in cases not handled by us because they followed the Twitch argument that the German civil courts had no jurisdiction and that US law would apply, such as the Landshut Regional Court and the Dresden District Court.

After all, Article 3 of Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) states

Free choice of law

The contract is subject to the law chosen by the parties. The choice of law must be explicit or be clear from the terms of the contract or from the circumstances of the case. The parties may choose the law for their entire contract or only for part of it.

This means that choice of law clauses are generally permitted, especially among entrepreneurs, and such exists in the Twitch terms and conditions.

Nevertheless, we were able to enforce at the Braunschweig Regional Court that the arbitration clause did not apply and that German law applies. This required around 200 pages of preliminary relief proceedings to refute the arguments of the Twitch lawyers.

After that, it was clear that the way in which Twitch blocked KuchenTV violates the highest court case law in Germany. The fact that a suspension is ineffective under German law without reason is, of course, nothing new.

With Dr. SARAFI, KuchenTV won against Twitch at the Braunschweig Regional Court and obtained the first verdict against Twitch.

The Braunschweig Regional Court ruled on January 30, 2024:

Twitch is prohibited from suspending the “KuchenTV” user account on the streaming platform www.twitch.tv for an indefinite or limited period of time due to a violation of the terms of use, or from restricting the use of the functions of www.twitch.tv without informing KuchenTV in advance of an intended blocking of its user account and providing it with the specific statement as to why a block is intended and to provide an opportunity to respond, which is followed by a new decision.