The EU Wants to Label 'Addictive Design' a Systemic Risk Under the DSA

The EU's preliminary findings on its investigation into TikTok will be contested, TikTok has already said, but it’s a massive test for the Digital Services Act, with implications for all platforms, writes Chris Stokel-Walker.

The European Commission appears to want to kill the concept of the infinite scroll on social media in preliminary findings published today, finding TikTok in breach of the Digital Services Act (DSA).

The Commission found that TikTok’s design, including ‘rewarding’ users with new content through its infinite scroll mechanism, could push people into ‘autopilot mode’ — which would put the company in breach of DSA rules, which protect users from addictive design.

“The Digital Services Act makes platforms responsible for the effects they can have on their users,” said Henna Virkkunen, Executive Vice-President for Tech Sovereignty, Security and Democracy at the European Commission, in a statement. “In Europe, we enforce our legislation to protect our children and our citizens online.”

The Commission has suggested that TikTok should change the design of its app, or potentially face a fine of up to 6% of parent company ByteDance’s global turnover, which it reportedly hoped could reach as high as $186 billion last year.

“The Commission's preliminary findings present a categorically false and entirely meritless depiction of our platform, and we will take whatever steps are necessary to challenge these findings through every means available to us,” a TikTok spokesperson told Tech Policy Press.

“They must send their own observation on the preliminary findings,” says Cecilia Isola, associate researcher at the Fondazione SERICS in Italy. “There will be an exchange of information.”

Isola believes that the Commission is unlikely to accept any changes, because the preliminary findings suggest that the steps TikTok has already taken, including implementing screen time limits, are not sufficient. Regardless, it’s likely to take time: Isola points to the Commission’s previous findings, where the appeals process has taken a year or more.

Nevertheless, the preliminary findings could have more implications beyond any individual feature in the app, if a final ruling in the matter requires substantial changes to the TikTok product available in Europe. The TikTok spokesperson declined to comment on whether potential action in Europe would mean further bifurcation, combined with the changes to TikTok’s ownership in the United States that took place after a January deal to bring in new investors to the company there.

Tama Leaver, professor of internet studies at Curtin University in Australia, believes that’s already happened after the deal that puts TikTok into the hands of US investors. “That case already proves we don't have a singular TikTok,” he says.

Leaver believes that it’s inevitable the US version will move beyond the first split. “I actually think that version is almost a complete fork, from what we can see, and it looks like the actual logic of the US version of TikTok is going to be significantly different, not just a little bit different.” Leaver believes “the global but uneven appetite for platform regulation, and the different versions of those regulations in different countries, makes it feel almost inevitable that we're going to get quite different versions of platforms.”

However, Isola is less certain that we’ll see a different product in the EU compared to elsewhere, not least because US states have also pursued a case against TikTok over its allegedly addictive design.

Other social media experts can envisage the decision spilling out beyond Europe, even if the preliminary findings are likely to be knocked back on appeal by TikTok.

“TikTok may appeal this, but it does set a precedent,” says Carolina Are, a social media researcher at the London School of Economics. “It does ask platforms to interrogate their effects on people. I do really wonder if it will trigger other decisions and have a copycat effect in the rest of the world, and I hope we will be all the better for it in terms of transparency.”

“Between this and the [US] court case that TikTok just got out of by settling. I think the courts and policy is at the point where it wants to test whether this use of the word addictive is, in fact, the correct term.”

Are points out that the EU’s findings get to the heart of the fears people have about the impact of social media on our children, and society more broadly. “I think a lot of the panics relating to online safety for children are very much related to addictive design, and even anecdotally, that is not just affecting children,” she says. She points out that she has even had to put limits on her usage of apps.

Nor is supposedly addictive behavior only affecting the young — despite all the focus paid to them in the debate around social media. “I can see my parents, who are in their mid-60s,” says Are, “and the way that they use platforms has very much changed from the years of Facebook.”

That makes this a “very high impact” test of the DSA, says Isola — and a demonstration of its potential strength on other platforms in the years to come. “I think that the DSA will have a very strong impact on the future of the design structure of online platforms,” she says.