Coimisiún na Meán is on a roll. On Tuesday, three years into its tenure as Ireland’s – and by extension Europe’s – de facto tech regulator, it announced its fourth and fifth investigations into large social media platforms in six months. While previously announced inquiries have looked into how companies deal with illegal content (in the case of LinkedIn and TikTok) and with complaints (at X), this time it plans to go to the heart of the problematic design of the internet, the part that undermines both our better judgment and the rules put in place to protect us.
The latest investigation will look into whether Instagram and Facebook are engaging in the now banned practice of “dark patterns”.
If you have ever found yourself accidentally paying for something you did not need, or stuck in a doom loop when trying to amend your settings, or noticing too late that there were other options than the one you clicked, then you have been subjected to dark patterns. The term comes from the world of user experience, or “UX”, and is the practice of designing websites and apps in ways that deceive or manipulate us into doing something we wouldn’t ordinarily do.
The marquee case of dark patterns is the US tax filing service TurboTax. The company develops software to help people file their taxes, and under a US government programme, 70 per cent of its users are entitled to use a free version of the tool. Yet a lawsuit in California found just 3 per cent of users were actually able to do so.
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The company deployed a range of tactics to drive consumers to “premium” products, like hiding the free version on its website and deploying prompts telling users they had to upgrade to a paid product to “accurately complete” their tax return, according to the California attorney general who took the case. It even had a product with a confusingly similar name to the free version – called “Free Edition” – that only told you once you had entered all of your information, possibly hours of work, that you had to pay or everything would be deleted. TurboTax settled that case with a $141 million ($120 million) settlement.
Meta faces a theoretical fine of up to $12 billion, or 6 per cent of turnover, should Coimisiún na Meán find that it contravened European rules on dark patterns. In this case no one is alleging that Meta is trying to get between us and our credit cards. Rather, it is being investigated to see if it is using deceptive design to stop users opting out of social media feeds that are curated by algorithms based on data collected about them.
The Digital Services Act, that came fully into force two years ago, obliges social media platforms to let users “select and modify at any time” their preferred recommender system. In other words, Instagram users should all be able to choose their own algorithms, including ones that are not based on invasive data mining and profiling. Coimisiún na Meán said it was launching the investigation following an assessment of complaints it received, at which time “concerns arose” that dark patterns in the way Instagram and Facebook’s interface is designed “may prevent people from exercising their right to choose a recommender system feed which is not based on profiling”.
Coimisiún na Meán does not go into details on what it has found to date, but Dutch organisation Bits of Freedom complained to the regulator about the issue of dark patterns at Meta in April last year. Frustrated by the slow progress, it then sued Meta in the Netherlands for the same complaint. Its research for that case found that Meta was, for example, hiding the option to opt out of Meta’s feed “behind a logo”, removing direct access to features like direct messages for those who did choose their own algorithm, or defaulting back to Meta’s preferred algorithm once users logged out and back in again.
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Like the TurboTax case, the alleged misdeed here is twofold. Meta is accused of forcing people to make choices they otherwise would not have made. It is also accused of deceptive design in order to technically comply with a regulatory requirement, but in a way that undermines its impact. This is known as malicious compliance, a kind of corporate work-to-rule. This has been an all-too-frequent response by many tech firms to European attempts to regulate the sector in recent years.
But there are signs that patience is running thin.
The cascade of investigations into big social media companies in the past six months might just be timing. The wheels of enforcement grind slowly. But it does appear to be a signal of intent by the Irish State to take its role as Europe’s social media enforcer seriously. While Coimisiún na Meán is an independent body, the commissioners are signed off by the Minister for Communications. This team, formally appointed by Catherine Martin in 2023, appears to be taking a more confident posture towards social media firms than the other tech regulators.
Government attitudes to social media companies have also hardened in recent years.
Tánaiste Simon Harris said he was frustrated at these companies “dining out” on Ireland’s reputation as an under-enforcer. Perhaps Ireland’s forthcoming EU presidency is sharpening minds. Thomas Byrne stated that one goal for our tenure is to “make the country look good”.
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Or perhaps, as partnerships with Microsoft suggest, the political class are betting on AI infrastructure to bring Ireland’s next phase of big tech-driven growth. Social media may have been the future once, but it now feels more like a brand liability.
