Social media and addiction: Europe ahead of the US. But the challenge is to enforce the rules

The verdicts by juries in New Mexico and California, which condemned some platforms to very 'large' fines for failing to adequately protect minors and for inducing addiction in the use of social media, were hailed as a breakthrough in the traditional US framing of the role and liability of digital giants for illegal or harmful third-party content.

While this is an important novelty, this change in approach certainly cannot be considered a global novelty, as it has already been established for some years on the European scene, where it is consolidating. In fact, in 2022 the European Union enacted the Digital Services Regulation (known as the Digital Services Act or DSA), taking note of the inherent complexity of digital services and related business models that could no longer be governed according to the broad meshes of the previous regulation, which dates back as far as 2000 and was designed for e-commerce rather than digital platforms. The regulation follows a risk-based approach: a higher degree of complexity and diffusion of services corresponds to a higher level of risk and thus to the application of stricter obligations. Thus, by diversifying requirements and obligations, it was recognised that digital services are not all the same.

In delivering this renewed legal framework now fully in place four years after its adoption, the European Union has codified a renewed role of digital platforms (especially large ones) in the public sphere. It has in fact provided for various risk management obligations and special requirements that reflect the centrality of these actors in the circulation of content, thus going beyond the mechanisms for assigning liability in the event of wrongdoing (which have remained intact).

Thus, the message that emerges from the responses of the US juries, that it is no longer just the content but the design of the product that matters, does not sound so new to those familiar with what is established in the 'old continent'. This is so true that the regulation prohibits providers of online platforms from designing, organising or managing their interfaces in such a way as to deceive or manipulate the recipients of services or to distort or impair their ability to make free and informed decisions. A similar constraint, therefore, to that of the US verdicts. Related to this prohibition is the transparency obligation linked to content recommendation systems (in essence, a form of profiling), which requires providers to indicate, among other things, their operating parameters.

A second point concerns the protection of minors. Appropriate and proportionate measures are imposed for the protection and safety of minors, and profiling of their personal data is prohibited.