How the Digital Services Act Is Shaping Litigation Against Platforms

The Digital Services Act (DSA), which became applicable on February 17, 2024, represents a significant shift in the European Union’s approach to regulating online platforms. Designed to create a safer digital environment, the DSA imposes comprehensive obligations on digital services, particularly targeting Very Large Online Platforms (VLOPs) and Very Large Online Search Engines (VLOSEs)—those with over 45 million monthly active users in the EU. As enforcement mechanisms activate, early cases provide insight into how the DSA is influencing litigation against platforms and signal emerging regulatory trends.

Early Enforcement Actions

1. European Commission’s Proactive Stance

The European Commission has taken an assertive role in enforcing the DSA’s provisions. By December 2024, at least 22 online platforms had received Requests for Information (RFIs) to assess compliance with the DSA. These RFIs are preliminary steps that may lead to formal investigations if non-compliance is suspected. Notably, the Commission initiated formal proceedings against five major platforms, reflecting its commitment to stringent oversight.

2. The Amsterdam District Court’s Landmark Ruling

In July 2024, the Amsterdam District Court addressed a case involving the platform X (formerly known as Twitter). The court ruled in favor of a user who had been subjected to undisclosed “shadow banning,” where the user’s posts were made less visible without notification. The court found that X violated the DSA’s transparency requirements and awarded damages to the user. This case underscores the judiciary’s willingness to enforce the DSA’s user protection mandates and sets a precedent for transparency in content moderation practices.

Emerging Regulatory Trends

1. Increased Scrutiny of Content Moderation Practices

Regulators are closely examining how platforms moderate content, emphasizing the need for clear, transparent, and non-discriminatory policies. The DSA mandates that platforms provide detailed explanations for content removal or visibility reduction, ensuring users are informed of the reasons behind such actions. This focus aims to balance the removal of harmful content with the protection of freedom of expression.

2. Focus on Algorithmic Accountability

The establishment of the European Centre for Algorithmic Transparency (ECAT) in 2023 highlights the EU’s commitment to scrutinizing the algorithms that drive content recommendation and moderation. ECAT’s role includes assessing the societal impact of these algorithms and ensuring they comply with the DSA’s standards. Platforms may face increased obligations to explain and adjust their algorithms to mitigate systemic risks, such as the spread of illegal content or disinformation.

3. Harmonization of Enforcement Across Member States

While the European Commission plays a central role in DSA enforcement, Member States are required to designate Digital Services Coordinators (DSCs) to oversee compliance at the national level. However, as of November 2024, enforcement at the national level has been limited due to delays in appointing and empowering these authorities. The Commission has initiated infringement procedures against several Member States to expedite this process, indicating a push towards uniform enforcement across the EU.

Predictions for Future Litigation

1. Rise in User-Initiated Legal Actions

As awareness of the DSA’s provisions grows, users are more likely to pursue legal remedies when they perceive violations of their rights. This could lead to an uptick in litigation against platforms, particularly concerning issues like unjustified content removal, lack of transparency, and breaches of privacy.

2. Challenges to Algorithmic Decision-Making

With the emphasis on algorithmic transparency, platforms may face legal challenges questioning the fairness and bias of their content recommendation and moderation systems. Courts may require platforms to demonstrate that their algorithms comply with the DSA’s fairness and transparency standards.

3. Increased Penalties for Non-Compliance

The DSA empowers regulators to impose significant fines—up to 6% of a platform’s global turnover—for non-compliance. This substantial financial risk is likely to motivate platforms to proactively align their operations with DSA requirements, but also sets the stage for high-stakes litigation if violations occur.

Conclusione

The Digital Services Act is reshaping the legal landscape for online platforms operating within the European Union. Early enforcement actions and court rulings signal a trend towards greater accountability, transparency, and user protection. As regulatory frameworks solidify and user awareness increases, platforms must navigate this evolving environment carefully to mitigate legal risks and ensure compliance.

For legal guidance on navigating the complexities of the Digital Services Act and ensuring compliance with its provisions, our firm offers expert counsel tailored to your platform’s needs. Contact us to stay ahead in this dynamic regulatory landscape.