EC Finds TikTok and Meta in Breach of DSA

The European Commission preliminarily found TikTok and Meta in breach of their obligation to grant researchers adequate access to public data under the Digital Services Act (DSA). Instagram and Facebook are in breach of their obligations to provide users with simple mechanisms to notify illegal content, as well as to allow them to effectively challenge content moderation decisions.

The preliminary findings show that Facebook, Instagram, and TikTok may have put in place burdensome procedures and tools for researchers to request access to public data. This often leaves them with partial or unreliable data, impacting their ability to conduct research, such as whether users, including minors, are exposed to illegal or harmful content. Allowing researchers access to platforms' data is an essential transparency obligation under the DSA, as it provides public scrutiny into the potential impact of platforms on our physical and mental health.

Neither Facebook nor Instagram appears to provide a user-friendly and easily accessible ‘Notice and Action' mechanism for users to flag illegal content, such as child sexual abuse material and terrorist content. The mechanisms that Meta currently applies seem to impose several unnecessary steps and additional demands on users. In addition, both Facebook and Instagram appear to use so-called ‘dark patterns', or deceptive interface designs, when it comes to the 'Notice and Action' mechanisms.

The DSA also gives users in the EU the right to challenge content moderation decisions when platforms remove their content or suspend their accounts. At this stage, the decision appeal mechanisms of both Facebook and Instagram do not appear to allow users to provide explanations or supporting evidence to substantiate their appeals. This makes it difficult for users in the EU to further explain why they disagree with Meta's content decision, limiting the effectiveness of the appeals mechanism.

Facebook, Instagram, and TikTok now have the possibility to examine the documents in the investigation files and reply in writing. The platforms can take measures to remedy the breaches. In parallel, the European Board for Digital Services will be consulted. If the Commission's views are ultimately confirmed, the EC may issue a non-compliance decision, which can trigger a fine of up to 6% of the total worldwide annual turnover of the provider. The EC can also impose periodic penalty payments to compel a platform to comply.