Court again rules in favour of Bits of Freedom: freedom of choice for Instagram and Facebook users remains intact
On 11 March, the Dutch Court of Appeal ruled on Meta's appeal against an earlier verdict brought by Bits of Freedom. The judgment was in favour of the digital human rights organisation. This is good news for Facebook and Instagram users in the Netherlands: they will continue to have the freedom to chose over what information appears on their feed.
What is this about?
In early October, the Dutch Court t issued a judgment in the case Bits of Freedom vs. Meta in the summary proceedings, which Meta appealed against. Bits of Freedom demanded that Meta offer its Instagram and Facebook users the option of choosing a feed that is not based on profiling, an obligation under the Digital Services Act (DSA). Without that freedom of choice, participation in public debate is seriously impeded. This is in itself problematic, but especially so in times of elections. The preliminary relief judge ruled in favour of Bits of Freedom and ordered Meta to modify its apps.
Since the beginning of this year, most Facebook and Instagram users in the Netherlands have been able to choose between two feeds. One compiled by Meta and it is based on your profiling, while the other is a feed with posts from the accounts you follow in chronological order.
On the appeal
In the appeal, Meta no longer contested the DSA violation. The company withdrew all substantive objections just one working day before the hearing. Instead, it asked the court to rule on a number of procedural points. Most importantly, Meta contested the urgent nature of the lawsuit. It also considered the deadline it had been given by the judge to implement the requested changes too short. On both points, the judge upheld the initial verdict.
With this judgment, users’ freedom of choice therefore remains intact. The Court of Appeal, like the preliminary relief judge, “is of the opinion that the claims are urgent in nature.” Bits of Freedom has a continuing urgent interest in the claim due to the “continuing unlawful conduct […] in violation of the DSA”, precisely because it concerns the freedom of information gathering. The Court of Appeal increased the penalty to 10 million euros because the maximum set in the summary proceedings was “an insufficient incentive for compliance”.
Great news for users in the Netherlands, but Europe deserves better
“The urgency of the case is confirmed by this ruling,” says Evelyn Austin, Executive Director of Bits of Freedom. “Meta has an enormous impact on our freedom of communication and public debate. It is therefore very important that the company complies with our European rules. This judgment shows once again that Meta is not above the law.”
Users in other European countries will have to wait longer before they are given more freedom of choice too. The Dutch court ruled on the situation in the Netherlands. Austin said: “We are pleased that Meta now to a degree seems to be in compliance with the law in the Netherlands on this point. But it is unacceptable that they continue to violate the law in other European countries. Europe deserves better, and we will fight hard to ensure that European citizens get what they deserve.”
Read the full judgment here (translated into English)
Contribution by: EDRi member, Bits of Freedom (BoF)