The European Commission has preliminarily found both TikTok and Meta in breach of their obligation to grant researchers adequate access to public data under the Digital Services Act (DSA). The Commission also found Meta, for both Instagram and Facebook, in breach of obligations to provide users simple mechanisms to notify illegal content, and to allow them to effectively challenge content moderation decisions.
The Commission’s preliminary findings indicated that Facebook, Instagram and TikTok may have introduced burdensome procedures and tools for researchers to request access to public data, resulting frequently in partial or unreliable data.
According to the Commission, neither Facebook nor Instagram appear 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 currently applied by Meta appear to impose several unnecessary steps and additional demands on users. Both Facebook and Instagram were also found to use ‘dark patterns’ when it comes to the ‘Notice and Action’ mechanisms. Under the DSA, ‘Notice and Action’ mechanisms are integral in allowing EU users to inform online platforms that certain content is illegal under EU or national laws.
The decision appeal mechanisms of Facebook and Instagram do not allow users to provide explanations or supporting evidence to substantiate their appeals, making it more difficult to explain why they disagree with content decisions.
The findings are currently preliminary. Facebook, Instagram and TikTok have been given the opportunity to examine and reply in writing to the Commission’s preliminary findings. They will have the ability to address the breaches while the European Board for Digital Services will be consulted in parallel.
If the preliminary views are upheld, the Commission may issue a non-compliance decision, which may trigger a fine of up to 6% of the total worldwide annual turnover of the providers. The Commission may also impose periodic payments.
These findings are part of the European Commission’s formal proceedings launched into Meta and formal proceedings to investigate TikTok under the DSA. The Commission continues its investigation into other potential breaches as part of these ongoing proceedings. These proceedings are distinct from ongoing investigations against the platforms concerning compliance with other relevant EU laws. On 29 October, the delegated act on data access came into force, granting access to non-public data from very large online platforms and search engines, to enhance accountability and identify potential risks.
Interestingly, according to the Oxford Internet Institute and Sky, access to X for independent researchers has been severely restricted: the academic API now costs up to $5,000/month, limiting large-scale audits.
