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News from Across the Sea #9

News from Across the Sea 9: Welcome to the final 2025 issue of our bimonthly newsletter on the European Union’s Digital Services Act (DSA)! As the year draws to a close, we have some news that’s making headlines

By Nicolás Zara

News from Across the Sea #9:

Welcome to the final 2025 issue of our bimonthly newsletter on the European Union’s Digital Services Act (DSA)! As the year draws to a close, one development is grabbing all the attention: the first and highly anticipated non-compliance decision (including a multi-million fine) against a company under the DSA. Flying under the radar is a new agreement between TikTok and the European Commission. In addition, the major platforms submitted a new round of risk assessment and mitigation reports.

Million-Dollar Fine for X

Just as in Venezuela, Christmas came early this year in Europe for Elon Musk. On December 4, the European Commission decided that Elon had misbehaved and gave him a piece of coal…and a fine of 120 million euros. This is the first non-compliance decision issued under the DSA. And, although this was widely anticipated—the question wasn’t so much whether X would be sanctioned, but when—its consequences are still difficult to fully assess. But let’s take it one step at a time.

How did X fail to comply?

The European Commission fined X for violating the DSA in three areas. The first of these was the “misleading” design of the “blue checkmark.” It’s worth noting that Twitter used to award this badge to certain users as proof that the account truly belonged to them, to prevent identity theft and distinguish “authentic” accounts from copies, parodies, or imposters. After Musk’s acquisition and Twitter’s rebranding to X, the badge’s design remained the same, but it no longer identifies authentic accounts belonging to real people and now identifies users subscribed to paid plans. In the Commission’s view, this makes it difficult for users to assess the authenticity of accounts and their content, and exposes them to scams, identity theft, and other forms of manipulation by malicious actors. The press release announcing the sanction states that, while the DSA does not require platforms to verify users’ identities, it does prohibit platforms from falsely claiming that users have been verified. X’s second violation concerns its ad repository, which fails to meet the DSA’s transparency and accessibility requirements. The repository’s shortcomings—which include access barriers and undue delays—make it difficult, according to the Commission, for civil society and researchers to “detect scams, hybrid threat campaigns, coordinated information operations, and false advertisements”. The third reason X was sanctioned is its failure to comply with its obligations to provide access to data for researchers, under Article 40(12) of the DSA. As we recently reported, other platforms are under investigation for similar violations, so this appears to be a priority on the Commission’s agenda.

Why is this important?

This is the first penalty of its kind under the DSA. As such, it is expected to pave the way for other ongoing investigations and serve as a benchmark for future cases involving alleged violations. The size of the fine signals that the European Commission—which had been criticized for appearing timid in the face of pressure from the U.S. government—is taking the enforcement of the DSA seriously. In particular, this penalty has been highly anticipated because it involves X, the “rebellious” platform within the DSA ecosystem, which the Commission has been keeping a close eye on since Musk took control of it. Finally, X is expected to challenge the fine in court, so this could also be a good opportunity for the courts to consider and clarify key aspects of the DSA.

U.S. Retaliation

Hours before the news became public, the U.S. vice president predicted that X would be sanctioned by the European Union “for failing to censor content”. The following day, U.S. Secretary of State Marco Rubio also spoke of censorship and accused the European Union of launching an attack on all U.S. technology platforms. Later, Elon Musk even called for the abolition of the European Union. This new chapter in the saga of transatlantic political tensions escalated in late December with the United States imposing new sanctions on European citizens it considers “leaders of the global censorship industrial complex”, and whose visas to enter or remain in the country were revoked. In this case, those affected were former European Commissioner for the Internal Market Thierry Breton, who denounced a new “McCarthyist witch hunt”; Anna-Lena von Hodenberg and Josephine Ballon of Germany, from the organization HateAid; Clare Melford, of the Global Disinformation Index; and Imran Ahmed, executive director of the Center for Countering Digital Hate (CCDH). The European Commission and the governments of Germany, France, and the United Kingdom described the sanction as unacceptable and stood by their citizens. Ahmed, who lives in the United States with his family, had to obtain a court order to prevent his arrest and eventual deportation. He accused the Trump administration of trying to silence him for his opinions. French President Emmanuel Macron also criticized the measures taken by the United States, which he described as forms of “intimidation and coercion aimed at undermining European digital sovereignty.”

Impact on Freedom of Expression

It is important to clarify that, despite the accusations made by Musk and U.S. government officials, these sanctions are not related to how X handles content posted by its users. In that sense, they have nothing to do with censorship or restrictions on freedom of expression. Or, in any case, as Imran Ahmed himself argues, if the sanction achieves its goal of facilitating access to data for researchers, then it will have a positive impact on freedom of expression. However, the case against X does not end here, and more sensitive aspects from the perspective of freedom of expression remain pending. Other parts of the investigation by the Commission remain open, concerning the effectiveness of the platform’s risk assessment and mitigation measures with respect to: (i) the circulation of illegal content, (ii) disinformation (particularly in relation to the “community notes” system), and (iii) the circulation of content harmful to civic discourse and electoral processes.

New Agreement with TikTok

On the same day it announced the multimillion-euro fine against X, the European Commission announced that it had reached an agreement with TikTok under which the Chinese company accepted a series of commitments regarding its ad inventory. It is worth recalling that in May, the Commission had preliminarily concluded that TikTok was in violation of the DSA’s provisions on this matter. With this new agreement, TikTok averts the possibility of a hefty fine in exchange for certain concessions regarding ad transparency. This agreement, the second of its kind reached by the Chinese company with the Commission, is interesting because it demonstrates another possible approach companies can take to address regulatory requirements. Article 71 of the DSA allows VLOPSEs under investigation by the Commission to enter into compliance commitments with it. However, in these proceedings, only press releases are available to the public, while the detailed content of the agreements, enforcement decisions, and the documents on which they are based remain, in the vast majority of cases, confidential. This lack of transparency in law enforcement processes—especially one where noncompliance carries such high fines—dangerously brings these mechanisms closer to illegitimate forms of coercion, insofar as it can create incentives that lead platforms to feel coerced into “voluntarily” committing to certain actions that the state could not legitimately require of them and to which they would not agree in the absence of such conditions.

New Round of Risk Assessment and Mitigation Reports

In November, the second round of risk assessment and mitigation reports from the VLOPSEs was made public. At this link you can find all the reports compiled in one place. Generally speaking, the reports remain very long, tedious, primarily text-based, and difficult to compare, and they still fail to provide the data underlying their decisions. In this interesting article, Tim Bernard analyzes some of the reports and highlights certain changes in these companies’ policies and discourse regarding freedom of expression.

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