Dutch court emphasises need for transparency in digital moderation decisions

Michelle Seel, technology law expert at Pinsent Masons said: “The ruling sets precedent for future cases involving ‘shadowbanning’ and other content moderation practices, highlighting the importance of transparency and accountability for platforms in their content moderation practices and reinforcing the need for compliance with DSA, and GDPR, requirements in the digital age.”

In this case, the court found that X had failed to comply with its obligations under the General Data Protection Regulation (GDPR) and the Digital Services Act (DSA), specifically Article 17, which mandates transparency in content moderation decisions by making it obligatory for platforms to provide its users with a so-called “statement of reasons” by means of which platforms should inform the relevant user about the restriction, the grounds for the restriction and the redress possibilities.

The dispute arose in October 2023 when Danny Mekić posted a tweet linking to a news article from the Dutch Broadcasting Foundation (NOS) that contained the term "child porn". X’s automated detection system flagged the tweet as potentially violating its policy against child abuse, resulting in a “shadowban” on Mekić's account. Shadowbanning is a practice where a user's content is hidden or restricted without their knowledge.

Mekić was not informed of the restriction by X and only became aware of it when other users reported that they could not find his account. On 13 and 15 October 2023, Mekić requested access to his data, which X granted on 14 November. However, Mekić felt that X’s response was inadequate and filed a petition with the court on 17 November.

In the initial ruling, the court ordered X to provide comprehensive information to Mekić about the automated decision-making process that led to the shadowban. This included details on the factors considered in the automated decision-making process, as required by Article 15 sub 1 under h and Article 22 of the GDPR. The court also mandated that X should provide insights into "reputation scores," labels, and the so-called Guano system, which tracks all monitoring actions taken on a user account.

X was given one month to comply with the order, with a penalty of €4,000 for each day of non-compliance. The order was served on 14 August 2024.

X provided some information to Mekić on 14 and 22 August 2024 subject to Mekić signing an NDA. Mekić rejected that, so X appealed the decision on the payment of penalty payments, arguing that it had done everything possible to comply and sought to have the penalty payments lifted or reduced under Article 611d of the Dutch Code of Civil Procedure, which allows for the cancellation, suspension, or reduction of penalty payments in cases of (temporary) impossibility to comply with the initial order. 

However, in the latest ruling published on 26 March, the court rejected X’s appeal, stating that the platform was capable of complying with the earlier order but chose not to by only providing limited information. The court found no basis for applying Article 611d and upheld the penalty payments. Mekić's request to increase the penalty payments was also rejected, as he had previously informed X that he would not proceed with the execution of the forfeited payments for the time being.