7 October 2025
The Amsterdam court putting the DSA into practice: non-persistent settings deemed a dark pattern
Last Thursday, on 2 October 2025, the Amsterdam District Court held in preliminary proceedings that Meta Ireland (Meta) must make changes to the recommender systems (the system for content recommendations) of Facebook and Instagram.1 First, Meta must make the non-profiled recommender system option directly and easily accessible for each content type (homepage, reels and comments), and second, Meta must ensure that the selected option persists and does not automatically reset back to a profiling based recommendation system when navigating through the app or reopening it.
Digital Services Act in action
In this landmark case, the Amsterdam Court determines that the current interface set up of Facebook and Instagram is not in line with the Digital Services Act (DSA). The non-profit association Bits of Freedom, bringing this case to court, argues that the current design deceives users towards profiled recommendations and makes non-profiled options hard to find and impossible to “stick” to, breaching articles 27, 38 and 25 of the DSA.
These articles impose requirements on the functionalities users can choose from regarding their preferred ranking of the information displayed on the online platforms in a transparent manner (art. 27 DSA). For Very Large Online Platforms (VLOPs), which Facebook and Instagram are, an additional requirement is introduced regarding recommender systems: they must at least offer one ranking option that is not based on profiling (art. 38 DSA). On top of that, online platforms must design and organize their online interfaces to not be misleading or manipulative, or otherwise affect user's decision autonomy (art. 25 DSA).
The Court finds that the current set-up is not sufficiently transparent when trying to find the settings to change the type of recommender system (based on profiling or in chronological order) in the Facebook and Instagram apps and websites. For each content type, the settings are not clearly indicated, which results in these functionalities not being directly and easily accessible. In addition, by resetting the choice of the recommender system from chronological order back to a profiling based system whenever a user navigates through the app or reopens it, a dark pattern is introduced.
A dark pattern leading to choice exhaustion
Interestingly, the Court explicitly classifies this set up as a “dark pattern”, even though article 25 DSA does not use that term directly. Instead, article 25 describes “online interfaces that deceive or manipulate users or in a way that otherwise materially distorts or impairs the ability of the user to make free and informed decisions”. However, recital 67 of the DSA does make explicit reference to the concept of dark patterns and defines it as “practices that materially distort or impair, either on purpose or in effect, the ability of users to make autonomous and informed choices or decisions”.
The Court decides that, as it is likely that when a user chooses to select the non-profiled (chronological) recommender system in one of the sections of Instagram or Facebook, the user does so in a generally well-considered manner. This is not the case when the user continues to navigate the platform, and the well-considered choice is then undone without an active action of the user. The consequence of resetting the choice made by the user when navigating between the different sections of the platform is that a user who wishes to use a non-profiled recommendation system will have to actively reset that choice each time they use the platform normally. The Court deems it plausible that this leads to choice fatigue among users and thus constitutes a significant interference with the autonomy of Facebook and Instagram users, classifying it a dark pattern.
Unfortunately, the Court did not decide whether the interfaces for the chronological recommender system are also considered dark patterns. The chronological recommender system lacked certain functionalities, forcing the user back to the profiled recommender system to, for instance, access their direct messages. However, no further analysis is drawn because Bits of Freedom did not include a specific relief for that issue.
Key take-aways for interface design
For online platforms that do not qualify as a VLOP, the obligation of having a non-profiling option does not apply. However, what is relevant for all online platforms, including VLOPs, is that persistence is now the default expectation. It is not possible to change settings back to another recommender system if the user does not actively do so themselves. In addition, a transparent interface design is key. The relevant functionality must be on the screen where the recommendations are shown and plainly labelled. There should be no detours into menus, logos or gestures. It is also important that these requirements apply to each type of recommender system separately, meaning that for VLOPs, also reel-type content must have a non-profiled option. Merely providing the option to “search” for content and offering that in a non-profiled manner, is not sufficient. Lastly, dark patterns must be avoided by all online platforms.
To determine whether a dark pattern is introduced in the interface, a key consideration is whether the interface is playing into known behavioral biases and heuristics, (in)directly manipulating or deceiving the user towards choices they would not have made without such design. It, of course, remains possible to implement designs that navigate users towards choices they may not have noticed otherwise, also often referred to as “nudging”. But important is that the design does so without materially distorting or impairing the ability of the user to make free and informed decisions.
What is next?
Meta has two weeks to implement the required changes to the interfaces of Facebook and Instagram. The question is whether these changes lead to a difference in user interaction and experience on these platforms. Will users all move over to the chronological recommender system, or will the system based on profiling remain more popular anyway?
1 2 October 2025, Amsterdam District Court, ECLI:NL:RBAMS:2025:7253.