On 10 March, the Amsterdam Court of Appeal handed down its ruling in proceedings between Stichting Bits of Freedom and Meta Platforms Ireland, Ltd., following Meta’s appeal. Bits of Freedom (BoF) is a Dutch organisation founded in 1999 that focuses on protecting the rights to privacy and freedom of communication.

In its decision, the court of second instance considered that Bits of Freedom’s claims are urgent and seek to put an end to (alleged) unlawful conduct contrary to Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on a Single Market for Digital Services and amending Directive 2000/31/EC (Digital Services Regulation) (hereinafter “DSA“) and to protect the freedom of Facebook and Instagram users to collect information. The court emphasises that this fundamental right is part of freedom of expression and is also protected by the DSA.

Background and summary of the case at the first instance

The DSA entered into force on 17 February 2024. On 25 April 2023, Facebook and Instagram were designated by the European Commission as very large online platforms because they exceeded 45 million active users per month in the European Union, meaning that they must comply with specific DSA rules addressing the particular risks these large services pose to European users.

On 20 August 2025, BoF initiated consultations with Meta. After failing to reach an amicable agreement, the organisation filed a lawsuit against Facebook Netherlands B.V., Meta Platforms Ireland Ltd., and Meta Platforms Inc. (collectively “the defendant” or “Meta“) alleging that the design of the recommendation system (the way content is presented to users) on the defendant’s Facebook and Instagram platforms was contrary to the provisions of the DSA.

The DSA stipulates that users must be able to select a recommendation system directly, easily and in an accessible manner. Furthermore, as very large online platforms, they must make available to users a recommendation system that is not based on profiling (e.g., a chronological system). Another question is whether the recommendation system chosen by the user must always be established (known as ‘persistent’) or whether Facebook and Instagram can revert to a profiled recommendation system after closing and reopening the website or application.

On 2 October 2025, the Amsterdam District Court ruled that Meta had violated the DSA by forcing users to return to the algorithmic feed (or content stream) based on profiles even after selecting non-profile-based options, and ordered Meta to make non-profiled options persistent, meaning that Dutch users’ choice of a non-algorithmic recommendation system would have to be maintained, even if the user browses other sections of the platform, and even if the user closes and reopens the apps or website.

The court also ordered Meta to make the preferred option for a non-profiled recommendation system directly and easily accessible on (i) the Instagram home page for the Android application, (ii) the Instagram reels section (both in the Android/iOS app and on the web), and (iii) the Facebook home page and reels section (both in the Android/iOS app and on the web).

The urgent interest in the Dutch case stems from the fact that the lawsuit was filed just a few months before the general election held in the Netherlands on 29 October 2025. The use of profile-based recommendation systems could undermine users’ freedom of choice and autonomy, both of which are fundamental to the exercise of freedom of information gathering and public debate in a democratic national election process.

This week, the Amsterdam Court of Appeal confirmed that the fact that the election period has passed does not diminish the urgent interest arising from the nature of the claims brought by BoF.

Effects of the appeal ruling and next steps

In the second instance, Meta withdrew its appeal on the merits and indicated that it would pursue the matter in substantive proceedings, where the legality of Meta’s interface design under the DSA will be assessed.

The appeal ruling has upheld the previous order requiring Meta to ensure that Dutch users can permanently choose a feed without algorithmic profiling (e.g., chronological) on Facebook and Instagram. The court of second instance has also increased the maximum penalty from €5 million to €10 million, considering that the previous amount was “an insufficient incentive for compliance“.