Ineffective by design: Bits of Freedom vs Meta at the forefront of enforcing user control for recommender systems under the DSA

On October 2nd 2025, the District Court of Amsterdam issued a ruling for the Bits of Freedom vs Meta Ireland case, concerning the difficulty of finding and permanently saving the non-profiled option for Facebook and Instagram’s recommender systems. This first-of-its-kind legal decision is a case study for the private enforcement of the Digital Services Act (DSA), highlighting that user autonomy is fundamental to democratic processes and must not be circumvented by platform designs leading to choice fatigue. 

The following unpacks the legal arguments in the case, considering both the initial court’s ruling and its appeal by Meta, which implemented the required design changes to its interface for Dutch users in January 2026. It also reflects on the possible EU-level implications for the case, given the current lack of clear regulatory guidance in this area – a void which may be partly filled through private enforcement of the DSA. 

Legal arguments 

In September 2025, the Dutch NGO Bits of Freedom (BoF) sued Meta, claiming it violated its legal obligations under Articles 25, 27 and 38 DSA). These provisions include a prohibition on design practices known as ‘dark patterns’ (Art. 25), transparency and controllability requirements for recommender systems (Art. 27), and an option for users to access non-profiled recommendations (Art. 38). The case was opened as a summary proceeding, due to the urgency of implementing changes to Meta’s platform interfaces ahead of the Dutch parliamentary elections in October 2025. The court found Meta Ireland (the EU subsidiary of Meta Inc) not compliant with Art. 27(3) and 38. 

Bits of Freedom’s arguments against Meta were the following: 

• The option for non-profiled recommendations on Facebook and Instagram is not directly and easily accessible. 
• The platforms actively ignore user preferences by automatically reapplying a profiled feed at the start of every new session and during navigation between different sections of the app. 
• The design makes it impossible for users to establish a persistent, non-profiled choice that carries over across sessions and page navigation. 
• Activating the non-profiled recommender system penalizes the user by presenting a significantly different interface stripped of essential functionalities.

In its ruling, the court agreed with BoF’s arguments, citing “the Instagram home page on the Android app, the reels section of Instagram (on both apps and the website), and the home page and reels section of Facebook (on both apps and the website) as examples of features that do not meet the requirements” of Articles 27(3) and 38. 

The court followed BoF’s argument that “the autonomy and freedom of choice of users in choosing a recommendation system is fundamental to the exercise of freedom of information gathering”, essential for “a democratic process such as elections”. As the selection of a non-profiled recommender system “requires an active action on the part of the user”, it is not plausible to claim that “navigating between the different sections of the platform […] constitutes a deliberate choice to undo that selection and opt for a profiled recommendation system again”. Therefore, requiring users “to make a choice again and again (each time the apps and/or website of the platforms are opened) […] is not compatible with a textual interpretation of Article 27(3) of the DSA” and, because “it leads to choice fatigue and an infringement of users’ autonomy”, it is also “contrary to Article 25 of the DSA and at odds with the purpose of Articles 27(3) and 38”.

Given these motivations, the judges ordered Meta Ireland to “to respect and persistently apply user preferences […], meaning that a choice made by Dutch users for a non-profiled recommendation system will be retained, even if the user navigates to other sections within the platform, and even if the user closes and then reopens the apps or website”. Moreover, the provider was required to “make the preferred option for a non-profiled recommendation system directly and easily accessible on (i) the home page of the Android app, (ii) the reels section of Instagram (all apps and websites) and (iii) the home page and reels section of Facebook (all apps and websites)”. The court also specified the blueprint for what an easily accessible functionality to disable profiled recommendations should look like: as easy to locate as  “the comments section of Facebook and Instagram, where the user can directly click/press on ‘For you’ or ‘Latest’ respectively”. 

To challenge the timing and scope of the decision, Meta Ireland used two arguments that are seemingly inconsistent with each other. First, the company argued that “any measures imposed should only apply until the elections, because after that the urgent interest will no longer apply”. Second, it stated that “it is impossible for it to implement these orders within two weeks, as this would entail radical changes to its platforms, the implementation of which would take at least six to twelve months”. 

While the first argument does not stand (because providers should be compliant with the DSA at all times, and Meta was found non-compliant), the two arguments considered together clearly signal the provider’s intention not to comply with these provisions at all. Since Meta simultaneously argued that the measures should apply only until the Dutch elections, and that implementing the necessary technical changes would take at least six months, it was de facto claiming that the court’s order could be respected. 

In its challenges, Meta focused only on procedural aspects of the case – it never engaged directly with the question of whether its user controls for recommender systems were effective. The company’s aim was apparently to keep its option for non-profiled recommendations ineffective by design. The Court rejected the company’s claims, stating that “Meta is not providing users the autonomy required under the law”. 

What happened after the initial ruling

Three months after the initial ruling, on 6th January 2026, Meta implemented the required interface changes, with a delay of six days with respect to the extended deadline set on 31st December 2025 (this was granted despite the urgency due to the Dutch elections of October 2025). However, around 4% of Facebook and Instagram users were unable to see these updates until at least mid-March 2026, as the company claimed that keeping this portion of users on the previous interface was temporarily necessary to resolve bugs and other technical issues arising from the launch.

The company appealed the first court’s decision in January 2026, but eventually decided to contest only procedural aspects – particularly the “urgent nature of the lawsuit” – after withdrawing all the other objections one day before the hearing. The appeal ruling of 10th March 2026 confirmed “the contested ruling in all other respects” apart from the amount of the maximum sanction for non-compliance, which the judges doubled to 10 million euros. This means that the mandated interface changes will remain in place for Instagram and Facebook users in the Netherlands. 

On 21st May, Bits of Freedom shared that Meta filed for cassation before the highest court in the Netherlands, the Supreme Court (Hoge Raad), which will verify whether the lower courts applied the law correctly, without reassessing the substance of the case. Despite being procedural in nature, the outcome of this future ruling, if in favour of Bits of Freedom, could set a significant precedent for the application of Art. 27 and 38 DSA across the EU; if favourable to Meta, it may restore the feed to the same version as in the rest of EU. 

Implications

An official interpretation of art. 27(3)’s requirements – with specific design suggestions on how to implement them – has not yet come from the European Commission, the main enforcer of the DSA against VLOPSEs such as Facebook and Instagram. The fact that the first-of-its-kind legal decision on recommender system design and user control under the DSA emerges from private enforcement instead of the Commission and the national Digital Services Coordinators (DSCs) has been noted by Meta, which stated that “the issue is a matter for the European Commission and regulators at the European levels and not for courts in individual countries”. 

In fact, private enforcement, together with out-of-court dispute settlement, is one of the mechanisms through which the DSA can be applied outside of the enforcement actions led by the Commission and subject to the providers’ appeal at the Court of Justice of the European Union (CJEU). While not legally sound, Meta’s argument raises the question why the Commission’s enforcement and secondary regulation have not substantially touched upon this matter as of the time of this writing. 

The Commission has taken a cautious approach to enforcing certain aspects of the DSA in the current geopolitical context, especially considering the “ongoing pressure from the Trump administration to challenge the implementation of European digital regulations”. However, given the large fines already imposed on US tech companies such as Apple and Meta under the Digital Markets Act, this explanation alone does not sufficiently clarify the reasons for the lack of regulatory guidance on the implementation of the DSA obligations on recommender systems, which remain vague to a large extent.  

These obligations require a sound knowledge base and technical grounding to be implemented, which the regulator is still trying to build. Indeed, the DSA enforcement team of DG Connect opened a call for tender in August 2025 “to develop and deliver comprehensive user models that capture the complex interactions between users and recommender systems on online platforms, specifically VLOPs and VLOSEs”. The external expertise sought should support the regulator to understand “how often users interact with options to better control their recommendations, including switching to a non-profiling based recommender system, providing explicit feedback signals […], or modifying any other recommender system settings available to better fit their own interests and needs”.

It should also be noted that art. 25, 27 and 38 DSA are also aimed at countering addictive design, which is at the centre of the Commission’s most recent preliminary findings against Meta from July 2026. According to the Commission, Meta “did not adequately assess the risks of its addictive design on the physical and mental wellbeing of users” as it did not consider how “certain design features of Instagram and Facebook, such as highly personalised recommendations, […] fuel the user’s urge to keep scrolling and shift the brain into ‘autopilot mode’, contributing to unhealthy habits and compulsive use”. 

With regard to recommender system design, the Commission might be reactive rather than proactive, as its normative view on how a compliant feed would look could be easily challenged by providers from a technical standpoint. Therefore, the regulator may prefer to wait and see how platforms update their design after being told that they are not compliant with the DSA. The political and commercial relevance of platform design changes cannot be understated: they are inextricable from the prevailing business models built on maximising user engagement.

Concluding remarks

According to the initial court ruling, “autonomy, freedom of choice and control over the way in which information is presented” are the principles grounding the EU legal framework on recommender systems. While users have been traditionally regarded as the passive stakeholder of the recommendation process, i.e. those consuming the recommended content, the DSA in its recital 70 aims to empower them to “influence how information is presented to them”. The role of transparency and user control for recommender systems is therefore to enable users to influence the socio-technical infrastructure that has been influencing them since the rise of social media platforms. 

However, changing the role of users from a passive to an active one is not a straightforward task. The mechanisms through which recommender systems influence users, and through which users can effectively contest such influence are, to a large extent, still obscure due to black-box and proprietary nature of this technology. However, an important question remains open in this regard: if users are indeed given more control over their feeds, as promised by the DSA and championed by Bits of Freedom, will they make use of it?