Commission sends preliminary findings to X for breach of the Digital Services Act 

This article is brought to you in association with the European Commission.

Today, the Commission has informed X of its preliminary view that it is in breach of the Digital Services Act (DSA) in areas linked to dark patterns, advertising transparency and data access for researchers.

Transparency and accountability in relation to content moderation and advertising are at the heart of the DSA. Based on an in-depth investigation that included, among others, the analysis of internal company documents, interviews with experts, as well as cooperation with national Digital Services Coordinators, the Commission has issued preliminary findings of non-compliance on three grievances:

• First, X designs and operates its interface for the “verified accounts” with the “Blue checkmark” in a way that does not correspond to industry practice and deceives users. Since anyone can subscribe to obtain such a “verified” status, it negatively affects users’ ability to make free and informed decisions about the authenticity of the accounts and the content they interact with. There is evidence of motivated malicious actors abusing the “verified account” to deceive users.
• Second, X does not comply with the required transparency on advertising, as it does not provide a searchable and reliable advertisement repository, but instead put in place design features and access barriers that make the repository unfit for its transparency purpose towards users. In particular, the design does not allow for the required supervision and research into emerging risks brought about by the distribution of advertising online.
• Third, X fails to provide access to its public data to researchers in line with the conditions set out in the DSA. In particular, X prohibits eligible researchers from independently accessing its public data, such as by scraping, as stated in its terms of service. In addition, X’s process to grant eligible researchers access to its application programming interface (API) appears to dissuade researchers from carrying out their research projects or leave them with no other choice than to pay disproportionally high fees.

By sending preliminary findings, the Commission informs X of its preliminary view that it is in breach of the DSA. This is without prejudice to the outcome of the investigation as X now has the possibility to exercise its rights of defence by examining the documents in the Commission’s investigation file and by replying in writing to the Commission’s preliminary findings. In parallel, the European Board for Digital Services will be consulted.

If the Commission’s preliminary views were to be ultimately confirmed, the Commission would adopt a non-compliance decision finding that X is in breach of Articles 25, 39 and 40(12) of the DSA. Such a decision could entail fines of up to 6% of the total worldwide annual turnover of the provider, and order the provider to take measures to address the breach. A non-compliance decision may also trigger an enhanced supervision period to ensure compliance with the measures the provider intends to take to remedy the breach. The Commission can also impose periodic penalty payments to compel a platform to comply.

Background

X, formerly known as Twitter, has been designated as a Very Large Online Platform (VLOP) on 25 April 2023 under the EU’s Digital Services Act, following its declaration of reaching more than 45 million monthly active users in the EU.

On 18 December 2023, the Commission opened formal proceedings to assess whether X may have breached the Digital Services Act in areas linked to the dissemination of illegal content and the effectiveness of the measures taken to combat information manipulation, for which the investigation continues, as well as dark patterns, advertising transparency and data access for researchers, which are subject of the preliminary findings adopted today.

The Commission has also put in place a whistleblower tool,  allowing employees and other people with knowledge to contact the Commission in an anonymous way to contribute to the Commission’s monitoring of compliance by designated VLOPs/VLOSEs.

The Commission has also opened formal proceedings against TikTok in February and April 2024, AliExpress in March2024, and Meta in April and May 2024. 

Quote(s)

Today we issue for the first time preliminary findings under the Digital Services Act. In our view, X does not comply with the DSA in key transparency areas, by using dark patterns and thus misleading users, by failing to provide an adequate ad repository, and by blocking access to data for researchers. The DSA has transparency at its very core, and we are determined to ensure that all platforms, including X, comply with EU legislation.

Margrethe Vestager, Executive Vice-President for a Europe Fit for the Digital Age 

Back in the day, BlueChecks used to mean trustworthy sources of information. Now with X, our preliminary view is that they deceive users and infringe the DSA. We also consider that X’s ads repository and conditions for data access by researchers are not in line with the DSA transparency requirements. X has now the right of defence — but if our view is confirmed we will impose fines and require significant changes.

Thierry Breton, Commissioner for Internal Market