News from Across the Sea #9:

Welcome to the final 2025 edition of our bimonthly newsletter on the European Union's Digital Services Act (DSA)! As the year draws to a close, we have a major development that is grabbing everyone's attention: the first and highly anticipated non-compliance ruling (complete with a multi-million euro fine) against a company under the DSA. Meanwhile, TikTok has reached a new agreement with the European Commission. Additionally, large platforms have submitted a new round of risk assessment and mitigation reports.

Multi-Million Euro Fine for X

Just like in VenezuelaChristmas came early for Elon Musk in Europe this year. On December 4th, the European Commission decided that Elon had been naughty and gave him coal...along with a 120-million-euro fine. This is the first noncompliance decision issued under the DSA. And, although it was highly anticipated—the question was never really if X would be sanctioned, but when—the full scope of its consequences is still difficult to grasp. But let us take it step by step.

In What Ways Did X Fail to Comply?

The european commission fined X for non-compliance with the DSA in three aspects. The first of these is the “deceptive” design of the “blue checkmark.” It is worth recalling that this badge was previously awarded by Twitter to certain users as proof that the account genuinely belonged to them, to prevent identity impersonation and to distinguish “authentic” accounts from copies, parodies, or impostors. After Musk's acquisition and Twitter's rebranding, the badge's design remained, but it ceased to identify authentic accounts of real individuals and instead identified users subscribed to paid plansAccording to the Commission, this makes impairs users' ability to judge the authenticity of accounts and their content, exposing them to scams, identity impersonation, and other forms of manipulation by malicious actors. The press release announcing the sanction states that, while the DSA does not mandate user identity verification, it does prohibit platforms from falsely claiming that users have been verified.

X's second non-compliance concerns its advertisement repository, which does not meet the DSA's transparency and accessibility requirements. The repository's shortcomings, which include access barriers and undue delays, hinder—according to the Commission—the ability of civil society and researchers to carry out their work of “detecting scams, hybrid threat campaigns, coordinated information operations, and deceptive advertisements." 

The third point for which X was sanctioned is his failure to comply with data access obligations for researchers, under Article 40(12) of the DSA. As we recently reportedother platforms are under investigation for similar breaches, so it appears to be a priority issue on the Commission's agenda.

Why Is This Important?

This is the first sanction of its kind under the DSA. Therefore, it is expected to set a precedent for other ongoing investigations and serve as a reference for future cases involving alleged non-compliance. The amount of the fine signals that the European Commission, which had been criticized for appearing timid in the face of pressure from the United States government, is taking the enforcement of the DSA seriously. This sanction is particularly anticipated because it involves X, the "rogue" platform within the DSA ecosystem, which the Commission has been monitoring especially closely since Musk took control. Finally, X is expected to challenge the fine in courtmeaning this could also present a good opportunity for the courts to consider and clarify key aspects of the DSA.

American Retaliation

Hours before it became publicly known, the Vice President of the United States anticipated that X would be sanctioned by the European Union “for not exercising censorship”. The following day, the United States Secretary of State, Marco Rubio, also spoke of censorship and accused Europe of launching an attack on all American 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 at the end of December with the imposition of new sanctions by the United States against European citizens it considers “leaders of the global censorship industrial complex,”and whose visas to enter or remain in that country were revoked. In this case, those affected were the former European Commissioner for the Internal Market, Thierry Breton, who decried a new “McCarthyist witch hunt”; Germans Anna-Lena von Hodenberg and Josephine Ballon, from the organization HateAid;Clare Melford, from Global Disinformation Index; and Imran Ahmed, CEO 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 resides in the United States with his family, had to obtain a court order to thwart his arrest and potential deportation. He accused the Trump administration of wanting to silence him because of his opinions. French President Emmanuel Macron also criticized the measures taken by the United States, referring to them as forms of “intimidation and coercion aimed at undermining European digital sovereignty".

Impacts on Freedom of Expression

It is important to clarify that, despite accusations from Musk and US government officials, these sanctions are not related to X's handling of user-generated content. In that sense, they have nothing to do with censorship or restrictions on freedom of expression. Or, in any case, as Imran Ahmed himself arguesif the sanction achieves its goal of facilitating access to data for researchers, then it will affect freedom of expression positively.

However, the case against X does not end here and still has more sensitive aspects pending from the perspective of freedom of expression. Other sections of the Commission's investigation remain open regarding the effectiveness of the platform's risk assessment and mitigation measures concerning: (i) the circulation of illegal content, (ii) information manipulation (particularly in relation to the community notessystem), and (iii) the circulation of content harmful to civic discourse and electoral processes. 

New TikTok Agreement

On the same day it announced the multi-million euro fine against X, the European Commission disclosed it had reached an agreement with TikTok, accepting a series of commitments from the Chinese company regarding its ad repository. It is worth recalling that in May, the Commission had preliminarily concluded that TikTok was non-compliant with the DSA's provisions on this matter. With this new agreement, TikTok avoids the possibility of a substantial fine in exchange for some concessions regarding advertising transparency.

This agreement, the second of its kind that the Chinese company has reached with the Commissionis interesting because it shows another possible approach for companies to deal with regulatory requirements. Article 71 of the DSA allows VLOPSEs under investigation by the Commission to undertake compliance commitments to it. However, in these proceedings, only press releases are available to the publicwhile the detailed content of the agreements, the implementing decisions and the supporting documents remain, in the vast majority of cases, confidential. This lack of transparency in law enforcement processes, especially one where non-compliance entails such high fines, dangerously brings these mechanisms closer to illegitimate forms of coercion, insofar as it may create incentives for platforms to feel pressured to "voluntarily" commit to undertaking certain actions to which they could not be legitimately compelled by the state and to which they would not agree in the absence of constraints.

New Round of Risk Assessment and Mitigation Reports

In November, the second round of risk assessment and mitigation reports for VLOPSEs was made public. At this link all the compiled reports can be found. Generally speaking, the reports remain extremely lengthy, tedious, primarily text-based, and difficult to compare, and they still fail to provide the data that supports their decisions. In this interesting article, Tim Bernard analyzes some of the reports and highlights some changes in the policies and discourse of these companies in relation to freedom of expression.

What Are We Reading?

Thank you very much for reading this far, and we will be in touch again soon.

Until next time!