Facebook and Instagram are being investigated by the EC

Today, the European Commission opened a formal procedure to assess whether Meta, the provider of Facebook and Instagram, could have violated the Digital Services Act (DSA). The Commission suspects, among other things, electoral manipulation.

Commission President Ursula von der Leyen said:

“This Commission has created means to protect European citizens from misinformation and targeted manipulation by third countries. If we suspect a violation of the rules, we act. This is true at all times, but especially so in these times. The big digital platforms must fulfill their obligations to put sufficient resources into this, and today’s decision shows that we are serious about respecting our democracies. It is a joint struggle of the member states. I want to especially thank Czech Prime Minister Fiala for his active role in raising the issue at European level, which led to Belgium’s triggering of the emergency mechanism for the exchange of information between member states.”

The suspected violations relate to Meta’s policies and practices regarding deceptive advertising and political content on its services. Another issue is also the unavailability of an effective real-time third-party election and civic discourse monitoring tool before the European Parliament elections, amid Meta’s deprecation of its real-time public intelligence tool, CrowdTangle, without adding a suitable replacement tool.

In addition, the Commission suspects that the mechanism for reporting illegal content on the services (“Notice-and-Action”), as well as the user appeal and internal complaints mechanisms do not comply with the requirements of the Digital Services Act and that there are deficiencies in Meta’s provision of researchers’ access to publicly available data. The opening of the proceedings is based on a preliminary analysis of the risk assessment report sent by Meta in September 2023, Meta’s responses to the Commission’s formal requests for information (on illegal content and disinformation, access to data, subscription to the ad-free policy and AI generative), publicly available reports and the Commission’s own analysis.

The current procedure will focus on the following areas:

• Misleading advertising and misinformation. The Commission suspects that Meta is not complying with DSA obligations related to addressing the dissemination of misleading advertising, disinformation campaigns and non-genuine coordinated behavior in the EU. The proliferation of such content can pose a risk to civic discourse, electoral processes and fundamental rights, as well as consumer protection.
• Visibility of political content. The Commission suspects that Meta’s policy related to “addressing political content”, which reduces political content in Instagram and Facebook’s recommendation systems, including their feeds, does not comply with the DSA obligations. The investigation will focus on the compatibility of this policy with transparency and user recourse obligations, as well as the requirements for assessing and mitigating risks to civic discourse and electoral processes.
• The unavailability of an effective real-time third-party civic discourse and election monitoring tool before the upcoming European Parliament elections and other elections in various Member States. Meta is in the process of deprecating “CrowdTangle,” a public information tool that enables real-time monitoring of elections by researchers, journalists, and civil society, including via live visual dashboards, without a suitable replacement. However, as reflected in the Commission’s recent Guidelines for Very Large Online Platform Providers on Systemic Risks to Electoral Processes, during election periods, access to such tools should be expanded. Therefore, the Commission suspects that, given Meta’s impairment and planned discontinuation of CrowdTangle, Meta failed to diligently assess and adequately mitigate risks related to the effects of Facebook and Instagram on civic discourse and electoral processes and other systemic risks. Given the expansion of Meta platforms in the EU (representing more than 250 million monthly active users such impairment could lead to the deterioration of civic discourse and electoral processes in relation to the capabilities to track misinformation and disinformation, identify interference and voter suppression and general real-time transparency to fact-checkers, journalists, and other relevant election elements. The Commission reserves its judgment as to the nature and imminence of the harm and expects Meta to cooperate with the Commission by promptly submitting the information necessary to conduct such The Commission also expects Meta to take all necessary steps to ensure effective real-time public scrutiny of its service by providing researchers, journalists and election officials with adequate access to real-time monitoring tools for hosted content. in his services. Also, Meta is requested by information request to communicate within 5 working days which remedial actions have been taken in this regard. The Commission has reserved the right to take action if these actions are deemed insufficient.
• Illegal content flagging mechanism. The Commission suspects that Meta’s notification and action mechanism, which allows users to notify the presence of illegal content on its services, does not comply with DSA obligations. This includes the suspicion that the requirements, whereby this mechanism must be easy to access and easy to use, are not met. At the same time, the Commission suspects that Meta has not implemented an effective internal complaints handling system to file complaints against content moderation decisions made.

After the formal opening of proceedings, the Commission will continue to gather evidence, for example by sending additional requests for information, conducting interviews or inspections.

The opening of formal proceedings also empowers the Commission to take additional enforcement measures, such as interim measures and non-compliance decisions.

Facebook and Instagram were designated as very large online platforms (VLOPs) on 25 April 2023 under the EU Digital Services Act, as they both have more than 45 million monthly active users in the EU. As VLOPs, four months after their designation, i.e. at the end of August 2023, Facebook and Instagram had to start complying with a number of obligations set out in the DSA.

From 17 February, the Digital Services Act applies to all online intermediaries in the EU.