With the Digital Services Act (DSA) entering into force on 17 February 2024, it was only a matter of time before private parties began to exercise their rights in civil courts. On 2 October 2025, the Amsterdam District Court delivered the first judgment in a private claim brought under the DSA.[1] In this case BoF, a Dutch public interest group focusing on internet governance, prevailed in a request for preliminary relief against Meta. In its claim, BoF requested that the Court order Meta to change how it displays different recommender systems across its social media platforms (Facebook and Instagram) and the way it enables users to interact with these systems when choosing their preferred settings as regulated by the DSA.
This request for preliminary relief received considerable media attention, as the Court ordered Meta to make several significant changes to Instagram and Facebook’s interface, while dismissing Meta’s arguments pertaining to the technical difficulty thereof.
This was the first successful collective civil claim brought under the DSA in the Netherlands. It thus gives an interesting first insight into what may likely become a new stream of private enforcement action in the context of digital markets. This blogpost explores the ruling by the Dutch courts and discusses its implications, both for the DSA violations at issue and the private enforcement of the DSA in the broader sense.
Factual background: recommender systems and dark patterns
The dispute revolved around how (and whether) Meta allows Facebook and Instagram users to switch the recommender systems on these platforms. Recommender systems are responsible for sorting and ranking the information that is presented to users on (platform) interfaces. Essentially, they determine what is displayed in a user’s feed. Such systems will differ based on the type of information presented and ranked by the respective platform (e.g. news stories, shopping items). Moreover, as social media platforms are almost exclusively financed through ad-based business models, the recommender systems are key to profit maximization since they also impact ad-exposure vis-à-vis users.
Profiling recommender systems are algorithm-driven and tailored to users based on data and inferred interests. Non-profiling systems organise posts in chronological or alphabetical order or otherwise based on simple parameters.
Instagram and Facebook provide both profiling and non-profiling recommendation systems. By default, both platforms use profiling systems on their Homepages, comments sections, and Reels sections (short-form videos similar to TikTok). Users that are not keen on this mode of filtering and presentation of information must actively switch to non-profiling recommender systems.
While this possibility to switch across systems was technically enabled by Meta, the manner in which it was implemented and how it functioned in practice left reason to believe this was not in compliance with the DSA, leading to the claim by BoF.
What the DSA requires
The DSA aims to create a “safe, predictable and trusted” online environment in which consumer choice is respected by regulating online intermediary services, including online platforms.[2] Online platforms’ business activities principally consist of storing and disseminating user-generated content making the way in which platforms curate content important for user experience. Recommender systems can have a significant impact on the information flow that users are exposed to and by extension the decisions that follow from this exposure. As a result, their regulation falls squarely within the ambit of the DSA and the objectives pursued by it.
For this reason, the DSA contains certain requirements for the use of recommender systems, some of which will be discussed below.
- To protect user choice, Article 25 DSA requires that platform interfaces be designed in a way that does not manipulate, deceive, or materially distort users’ ability to make informed choices. This obligation also covers the portions of interfaces pertaining to recommender systems. This provision aims to prevent the use of dark patterns, practices which materially distort the ability of users to make informed choices.[3]
- Article 27 DSA requires that platform providers clearly explain the criteria recommender systems use, their relative importance and the reasons for their relative importance.[4] Where a platform has multiple recommender systems, platform providers must allow users to switch recommender systems in a “directly and easily accessible” section of the platform.[5]
- Certain large platforms, designated under the DSA as very large online platforms (“VLOPs”), are subject to stricter requirements. With respect to recommender systems, VLOPs must offer at least one recommender system which is not based on profiling under Article 38 DSA. The option to choose such a recommender system must be “directly accessible” from the place where the recommendations are made.[6] Both Instagram and Facebook have been designated as VLOPs and are therefore subject to this provision.
Bits of Freedom’s Claims
Insofar as it is relevant for this blogpost, BoF argued that Meta had violated the DSA by:
- Making it difficult for users to choose non-profiling recommender systems in violation of Article 27(3) and Article 38 DSA;
- Automatically resetting recommender systems back to the default (profiling) system when users either switched pages within the platform (e.g. from the Homepage to Reels), closed the app or logged off in violation of Article 25 DSA; and
- Presenting users who choose to use the non-profiling system with interfaces that are technically and functionally inferior in violation of Article 25 DSA.[7]
In its writ of summons, BoF requested that the Court:
- Forbid Meta from resetting users’ chosen recommender system on the Homepage, comments section, and Reels section of Facebook and Instagram;
- Order Meta to create an easy way to persistently switch recommender systems for the Homepage, comments section, and Reels section of Facebook and Instagram;
- Order Meta to make the mechanism for changing recommender systems directly and easily accessible on the Homepage, comments section, and Reels section of Facebook and Instagram;
- Order Meta to mark the Homepage, comments section, and Reels of Facebook and Instagram as “Profiled” when a profiling recommender system is in use;
- Order Meta to publish the relative importance of the parameters of its recommender systems, the reasons for their relative importance, and an explanation of how and why certain posts are prioritised in the User Conditions and Transparency Center of Facebook and Instagram; and
- Order Meta to include a pop-up on Facebook and Instagram explicitly informing users of the use of profiling recommender systems by default, as well as the possibility to switch to a non-profiling system.
For each order, BoF requested a deadline of two weeks to comply. BoF also requested that the Court require Meta to pay EUR 250,000 per day to BoF up to a maximum of EUR 100 million if it does not comply with the judgment.
Findings of the Court
The Court ruled in favour of BoF with respect to the first two claims mentioned above, while it declined to rule on the third as will be discussed below.
Importantly, this concerned an application for preliminary relief, so the Court did not engage in full fledged fact-finding and legal analysis. Instead, the Court assessed whether BoF’s claims are likely to be granted in the main proceedings and whether BoF can reasonably be asked to await the outcome thereof. The court in the main proceedings can also come to a different conclusion than the preliminary relief court.
Accessibility of Non-Profiling Options
The Court first assessed whether the options to choose alternative, non-profiling recommender systems were “directly and easily accessible” as required by Article 27(3) DSA. Here the Court distinguished between different features and versions of Instagram and Facebook.
For the iOS and web versions of Instagram, the option to switch to a non-profiled recommender system was found to be directly accessible on the Homepage. Users can click on the “For You” to access a dropdown menu which allows them to switch to “Following” (chronological). This change also applies to the comments section. The Court found that this complied with Article 27(3) DSA.
However, the Court found that the Homepage of the Android version of Instagram did not comply with the DSA. There, the option to switch recommender systems is hidden behind the Instagram logo, a non-obvious location. Users are not informed that clicking the logo opens the chronological feed, meaning switching was not directly and easily accessible.
The same applied to the Reels on all versions (i.e., iOS, web and Android) of Instagram. To access the option to switch recommender systems, users must click “Reels”. This was found insufficiently direct and accessible, as this action is arbitrary and seems unrelated to feed settings.
The interface of certain sections of Facebook on iOS, Android and the web was also found to violate the DSA, specifically that of the Homepage and the Reels section.
To access a non-profiled version of their Homepage, users must first click on “Menu” and select either Favourites, Friends, Groups or Pages. This was not easily accessible, as users must leave the Homepage. Moreover, none of the feed names actually indicated that these utilized non-profiling recommender systems. This therefore violated Article 27(3) DSA.
The comments section, on the other hand, complied with the DSA. Users could simply choose “Newest” via a dropdown menu at the top of each post to view comments in chronological order.
The Reels section of Facebook also violated the DSA because Meta had not created a non-profiling recommender system for Reels. Since Facebook is a VLOP, this violated Article 38 DSA.
The Court therefore concluded that the Instagram Android Homepage, Facebook’s Homepage and the Reels sections violated the DSA.[8]
Lack of persistence of user choice: a dark pattern
The Court also assessed whether Meta had violated the DSA by not offering users the “persistent” choice of a non-profiling recommender system. Whenever users closed and reopened the app, or navigated between sections (e.g., from Homepage to Reels), the platform reverted to a profiling recommender system. BoF argued that this practice unacceptably and materially distorted Meta’s users’ ability to make free and informed decisions.[9]
The Court considered that the automatic resetting at issue was a dark pattern. According to the Court, when users switched to a non-profiling recommender, this is a carefully considered choice. Automatically resetting recommender systems forces the user to constantly make this choice while using the app, leading to “decision fatigue”. This materially distorts users’ ability to freely make decisions and is therefore a dark pattern that violates Article 25(1) DSA.
Interface Design and Functional Limits
BoF further complained that when users selected non-profiling recommender systems, they lost access to key features, which they considered a dark pattern. The Court acknowledged that certain features of both platforms were unavailable when users choose a chronological feed. However, since BoF did not request any relief with regard to this issue, the Court did not rule on it.
Other considerations with respect to preliminary relief
The Court also assessed whether there was a pressing interest to the requested relief. The Court considered that the freedom to choose the manner in which one receives information is key for the functioning of democracy, especially given the parliamentary elections that are to take place in a number of weeks following the judgment. The Court therefore considered that there was a pressing interest. The effect that Meta’s recommender systems had on information curating and ranking would be of direct relevance to the availability of information that consumers rely on when making their voting decisions.
Importantly, however, while the Court took into account the upcoming Dutch parliamentary elections, it rejected Meta’s request to limit the effect of the request to the election date. Meta was required to provide non-profiling recommender systems, regardless of any upcoming elections. The Court rejected Meta’s arguments that short-term implementation was technically impossible. Meta had argued that it would take 6-12 months to implement the changes. However, given that Facebook and Instagram already offered DSA-compliant selection mechanisms for certain sections (e.g. the comment section), the Court considered that such extended timelines are not justified in the absence of any additional information to the contrary which Meta failed to provide.
Conclusion
Based on the above, the Court ordered Meta to:
- Make users’ choice to use a non-profiling recommender system ‘persistent’ where users switch sections or close the platform within two weeks; and
- Make non-profiling recommender systems for the Homepage of Instagram on Android, the Reels pages of all versions of both Instagram and Facebook, and the Homepage of all versions of Facebook easily accessible.
For every day that Meta did not comply with the judgment, the Court ruled that it would pay a fine of EUR 100,000 per day, up to a maximum amount of EUR 5 million.
Implications of the case
The judgment offers a sound interpretation of the DSA, demonstrating the advantages of a tailored regulation and the potential synergies between private and public enforcement. At the same time, certain choices by both the Court and BoF limit the effectiveness of the order.
Administrability of the DSA by national courts
The ruling highlights the opportunities for consumers and other third parties considering litigation offered by the DSA. Digital platforms often have complex business models, technical architecture and an abundance of (legal) resources. This makes it difficult to bring claims under competition law or other civil law causes for action: the broad nature of these rules often necessitates extensive factual and legal analysis. The DSA by contrast has precise, ex ante rules aimed at specific components of platforms’ businesses. This makes the assessment of DSA claims relatively straightforward in many cases, which should generally make DSA-based proceedings less lengthy, costly, and most importantly administrable by national courts.
The accumulation of these advantages is made particularly clear in the Court’s assessment of Meta’s automatic resetting of recommender systems. Despite the complexity of such systems the essence of the assessment revolved around a fairly straightforward factual question, namely does the resetting make it less likely for consumers to effectively express their free choice.
The Court’s finding that this is likely the case brought DSA case-law forward by recognising automatic resetting as a dark pattern without much need to explicitly dive into complex studies of behavioural economics that would very likely lead to the same conclusion. After all it is not without reason that the DSA explicitly forbids platforms from forcing consumers to constantly re-confirm their choices in an attempt to nudge them to the desired options by the respective platform. Insights from behavioural economics have evidently already been factored in and the Court’s findings showcase this vividly.
Meta’s policy did comply with the literal text of Article 27(3) DSA: users were permitted to “select” a recommender system. In practice however automatic resetting obviously encourages the use of the default, profiling recommender system. The Court recognised the risk for “decision fatigue” (a well-documented psychological phenomenon)[10] and explicitly took this into account in its finding that this behaviour violated the DSA. This highlights that DSA compliance cannot (easily) be achieved with small technical tweaks: it requires designing platform interfaces so that they materially and genuinely respect user choice.
Synergies between public and private DSA enforcement
The case demonstrates the interplay and potential synergies between public and private DSA enforcement. Similar to the Digital Markets Act (DMA), the DSA provisions also have direct effect and can be relied upon before national courts. Additionally, and unlike the DMA, the DSA has a decentralised enforcement system and a complaint mechanism where national authorities play a bigger role. While that should in principle increase complaint uptake rates, it is of course no guarantee that all complaints can be taken up.
The first annual reports of Digital Service Coordinators (DSCs) indicate that the complaint mechanism has proven incredibly popular in certain Member States, particularly Germany and the Netherlands (see our previous blogpost). Many of these complaints were forwarded to the Irish DSC, the Coimisiún na Meán (CnM), as most VLOPs are located in Ireland, creating a high workload for the CnM.[11] There is thus a real risk that the CnM’s resources will be stretched, reflecting a similar pattern as with the GDPR.
This issue is however not limited to the CnM. The Authority for Consumers and Markets (ACM), the Dutch DSC, received 100 complaints over which it had jurisdiction in 2024.[12] Based on its annual report, none of these led to an investigation. The judgment highlights that, where private parties believe a DSC has not (sufficiently) protected their interests, they can file a private claim. Moreover, given the cross-border nature of many platforms, they are not necessarily required to do so in the jurisdiction in which the relevant platform is established.
These circumstances seem to also have impacted BoF’s decision to pursue a direct action via the Dutch Court. BoF had initially lodged a complaint regarding Meta’s recommender systems in April 2025 with the CnM. It is unclear whether the CnM chose not to open an investigation based on this complaint or has simply failed to do so in a timely fashion. Whichever the reason may be, BoF was able to effectively opt for the alternative route of private litigation by launching its collective action against Meta several months later.
As the number of complaints will continue to pile on, similar patterns can be expected going forward. Importantly, as displayed by this case, where the matter involves a straightforward factual legal question, injunctive or preliminary relief can constitute viable and cost-efficient alternatives to public enforcement that fails to pick up. As shown by the case at hand, while the pursuit of such actions based on preliminary relief procedures does not mean that the respective remedies will be temporary.
Further observations
While the Court largely resolved the case in a sensible manner, there are several shortcomings in the ruling and claim that limit the overall effectiveness of the case.
One issue is the amount of the penalty payments. For every day that it does not comply with the judgment, Meta must pay EUR 100,000, up to a maximum amount of EUR 5 million. This was significantly lower than the EUR 250,000 per day, with a maximum of EUR 100 million that BoF requested.[13]
For most companies, this is a significant sum. However, Meta’s revenue was around USD 47.5 billion in Q2 2025 (around EUR 40.5 billion).[14] In recent years, Meta has received almost EUR 1 billion in fines from the EU Commission for violations of competition law and the DMA,[15] as well as close to EUR 1.4 billion in fines from the Irish Data Protection Commissioner (IDPC).[16] This suggests that Meta view fines as the cost of doing business, raising the question of whether an additional EUR 5 million will actually encourage Meta to comply with the ruling. If implementing the order would lead for example to a larger loss in ad-revenue from Facebook and Instagram, there is little reason for Meta to comply apart from the moral obligation to comply with the law that is inherent to any modern democratic society and its participants. While for most that should be enough, the same cannot be said about Meta in view of its track record.
Another problem is that one of the most important DSA violations at play remains unaddressed, namely the different functionality of Instagram and Facebook when non-profiling recommender systems are activated. The Court acknowledged that Meta changes the functions offered when users choose non-profiling systems.[17] Meta disputed that this violated the DSA. Since BoF did not request any relief with respect to this issue, the Court did not rule on the legality of this difference in functions.
By doing so, BoF (at least for now) failed to address one of the most pressing matters. The practice of offering different functions essentially punishes users for picking a non-profiling recommender, disincentivizing their use. This mirrors Meta’s previous choice to implement the so-called “pay-or-consent” model whereby users must either pay high fees or consent to having their personal data collected, which constituted an infringement of the DMA resulting in a EUR 200 million fine.[18] If Meta continues to serve consumers that opt for a non-profiling recommender system with inferior interfaces, it is not difficult to imagine that users will be pushed into using profiling recommender systems despite their possible reservations. Needless to say, this does not sit well with the DSA’s aim of guaranteeing freedom of choice.
Finally, the Court did not grant BoF’s most far-reaching requested relief, namely ordering Meta to label profiled feeds as such, explain the relative importance of its parameters in the User Conditions and Transparency Center, and provide a pop-up informing users of the option to switch to a non-profiled recommender system (see above)
These requests would have contributed to the DSA’s goals, by requiring Meta to better inform its users. In combination with the other relief, it could have pushed users to switch from the default recommender system much more frequently without subsequently having their choice reset. However, BoF did not provide a legal basis for the first of these requests,[19] and did not motivate the other two.[20] The Court therefore dismissed these claims, limiting the effect of the ruling.
Conclusion
The Court’s ruling in Bits of Freedom is an important first step in DSA private enforcement within the Netherlands and the EU more broadly. The case highlights the advantages of the DSA’s tailored, and administrable ex ante regime for private claimants, as well as the interplay between public and private enforcement. At the same time, the case also displays some potential pitfalls. The relatively low amount of the penalty payments imposed in such procedures may not always suffice to guarantee compliance and the omission of well substantiated legal grounds in the absence of an ex-officio obligation of national courts to engage with the DSA may diminish the effectiveness of such procedures. It remains to be seen whether these issues will be addressed in the run up to the main proceedings in the Netherlands. In any event however, the case represents an important and welcome development for the regulation of detrimental practices by (big tech) digital platforms.
[1] Amsterdam District Court, 2 October 2025, ECLI:NL:RBAMS:2025:7253 (Bits of Freedom) in Dutch only.
[2] Recital 2 and Article 1(1) DSA.
[3] Recital 67 DSA
[4] Article 27(1) and (2) DSA.
[5] Article 27(3) DSA.
[6] Recital 94 DSA.
[7] Writ of Summons, para, 33-37, Available at https://www.rechtspraak.nl/SiteCollectionDocuments/dagvaarding-stichting-Bits-of-Freedom-tegen-Meta.pdf.
[8] Amsterdam District Court, 2 October 2025, ECLI:NL:RBAMS:2025:7253 (Bits of Freedom), paragraph 4.20.
[9] Amsterdam District Court, 2 October 2025, ECLI:NL:RBAMS:2025:7253 (Bits of Freedom), paragraph 4.29.
[10] For a literature review on the issue, see M. Maier, D. Powell. P Murchie & J Allen, “Systematic review of the effects of decision fatigue in healthcare professionals on medical decision-making”, Health Psychology Review, 2025, Available here: https://www.tandfonline.com/doi/full/10.1080/17437199.2025.2513916.
[11] The DSA uses the principle of establishment, meaning that each DSC is competent to investigate complaints of online platforms located in its territory, see Article 53 DSA.
[12] ACM Annual Report, Available here: https://www.acm.nl/system/files/documents/dsa-jaarverslag-2024.pdf.
[13] See Writ of Summons, pg. 12.
[14] Meta Second Quarter 2025 Results, Available here: https://investor.atmeta.com/investor-news/press-release-details/2025/Meta-Reports-Second-Quarter-2025-Results/default.aspx.
[15] See Case DMA.100055 (Pay-or-consent) and Case AT.40682 (Facebook Marketplace).
[16] See for example IDPC Press, ‘Irish Data Protection Commission fines Meta €251 Million’, 17 December 2024, Available here: https://www.dataprotection.ie/en/news-media/press-releases/irish-data-protection-commission-fines-meta-eu251-million; IDPC Press Release, ‘Irish Data Protection Commission fines Meta Ireland €91 million’, 27 September 2024, Available here: https://www.dataprotection.ie/en/news-media/press-releases/DPC-announces-91-million-fine-of-Meta; IDPC Press Release, ‘Data Protection Commission announces conclusion of inquiry into Meta Ireland’, 22 May 2023 Available here: https://www.dataprotection.ie/en/news-media/press-releases/Data-Protection-Commission-announces-conclusion-of-inquiry-into-Meta-Ireland.
[17] See paragraph 4.37 of the judgment.
[18] See Case DMA.100055 (Pay-or-consent).
[19] See paragraph 4.43.
[20] See paragraph 4.44.
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