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

By Matteo Fabbri

This post unpacks the legal arguments and implications of Bits of Freedom vs. Meta Ireland, a case which constitutes an important early example of private enforcement of the DSA and may influence EU-wide interpretations for how VLOPSEs must implement user controls for recommender systems.

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”.

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