Tackling Mental Harms under the DSA: Why VLOPs Might Have the Upper Hand

On the 18th of March, I had the unique opportunity of acting as PEARL Talk discussant to the recently published article “Social media and mental harms under the Digital Services Act”, co-authored by Przemysław Pałka and Ewa Ilczuk (Jagiellonian University of Krakow). I shared my role as a discussant with Mateus Correia de Carvalho (EUI), and we had the pleasure of having the Talk chaired by Giulia Gentile (University of Essex).

The following (brief) paragraphs are a result of both the contributions I made during the Talk and the reflections I garnered afterwards thanks to the amazing discussion that arised between all the participants.

The Article Itself: A Direly Needed ‘Legal First Punch’ in EU Social Media Mental Harms Discourse

In my view, we are currently at a tipping point for social media usage: as the article keenly points out, there have been growing concerns regarding the possible harms resulting from (or associated with) the extended use of social media platforms[1], alongside a growing body of scientific evidence that shows those concerns to be effectively warranted, especially in the domain of mental harms[2] At the same time, there have been notable legal landmarks in both the United States and the European Union regarding the possibility of holding Very Large Online Platforms (VLOPs) accountable for the way they design their platforms.

In respect to the United States’ legal landscape, Meta and YouTube have been very recently found liable by a jury in Los Angeles for “deliberately designing addictive products”[3]. Just the day prior to that ruling, Meta had also been found liable in New Mexico for misleading consumers “about the safety of its platforms” and enabling harm, including child sexual exploitation[4].

In the context of the European Union, after a much-anticipated first display of enforcement of the Digital Services Act (DSA)[5] vis-à-vis VLOPs[6], which ultimately materialised in the fine against X for breaching its transparency obligations[7], the European Commission has also more recently filed preliminary conclusions against TikTok, in which the platform was found in breach of the DSA due to addictive features in its design, namely because it “failed to adequately assess how these addictive features could harm the physical and mental wellbeing of its users” [emphasis added][8].

The Commission, it seems, is starting to explore the venues laid out by Article 34(1)(d) of the Regulation: while there have been several formal proceedings opened against different VLOPs for the purpose of investigating possible non-assessed risks to the mental wellbeing of users (namely against Meta[9], Temu[10] and Shein[11]), this is the first non-compliance preliminary decision by the Commission directly related to those issues.

Nevertheless, in the framework of the DSA, it remains unclear what exactly “serious negative consequences to the person’s […] mental wellbeing” entail from a legal perspective, as “mental wellbeing” is far from being a settled and well-discussed term in legal doctrine and case-law. It’s within that context that this article should be gauged: its value resides precisely in the fact that it attempts to give legal meaning to the mental harms that have been identified in the literature as at least correlated with social media use. Indeed, it constructs three operational “mental goods” that should be taken into consideration by VLOPs in their risk assessments and subsequent mitigation measures ex vi Articles 34 and 35 of the DSA.

In a nutshell, it’s a promising and well-thought contribution that can steer the DSA’s enforcement into meaningful change, as it lays out a solid legal base which both VLOPs and the Commission can work upon to identify and tackle the systemic risk of mental harm.

However, with such a ‘first legal punch’, my fear is that VLOPs will do anything but throw in the towel.

 

The Presumable Counter-Jab of the Industry: the Corporate Playbook

While social media platforms as products aren’t inherently addictive, their current ad-based business model, as the article highlights, strongly incentivises mechanisms and features that ensure users spend as much time as possible in-app. As such, any attempt to crackdown on these elements won’t be taken lightly by VLOPs, as it hits the core of their business interests.

In this sense, we can draw some parallelisms with other addictive industries, such as the tobacco or gambling ones, which have historically employed a series of methods to contest claims of harmfulness and addictiveness of their products, in what has been called the ‘corporate playbook’[12]. Amongst these methods, the specific strategy of undermining scientific evidence, by way of seeding doubt in current research, funding counter-studies, insisting on the complexity of the issue, distorting evidence and data, etc.[13], looks to be the probable next step of VLOPs, as their preliminary statements regarding the different legal accusations they have received in the past weeks seem to hint in that direction.

Indeed, a spokesperson of Meta, after stating that it would appeal the US-based court rulings on addictive design and child sexual exploitation, said that “teen mental health is profoundly complex and cannot be linked to a single app”[14], foreshadowing a legal defense that will presumably be achored on attempting to sever the causal claim between mental harms and social media. In similar fashion, a TikTok spokesperson stated that the Commission’s findings of addictive design were a “categorically false and entirely meritless depiction of our platform”[15], alluding to the same type of defense.

These formal statements, however, stand in stark contrast with Meta’s own internal research findings and TikTok’s internal communications and documents, which have long established and recognised the harm caused by its platforms to users’ mental health[16]. This duality of what VLOPs defend and claim in public and what they know in private has eerily resemblances to other harmful industries such as the tobacco one[17].

Therefore, I think one of the main challenges for the Commission to properly enforce the mental wellbeing protection provisions of the DSA will be to gather evidence robust enough to endure both the scrutiny by the courts and the undermining tactics of VLOPs: this challenge is exacerbated when you take into account that the Commission is building its enforcement capacity from scratch[18], and that, historically, litigating with addictive industries has demanded enormous coordination efforts between lawyers and healthcare professionals capable of dissecting the wealth of information and documents submitted by the companies in court[19].

To make matters even worse, the entire enforcement capability of the Commission might have been compromised from the beginning, due to it being a political body by nature. Even though this lack of independence is not a recent theme for the DSA[20], it has gained recent traction after the Commission’s first enforcement of the Regulation against X was met with serious animosity by both the company and the US Administration[21]. With such an openly hostile political stance against Digital Regulation on the other side of the Atlantic, where most VLOPs are based, the question remains whether or not the European Commission is willing to risk losing leverage as a political entity in order to ensure it is properly doing its role as an enforcer of the DSA. Right now, it’s not looking promising[22].

 

Conclusion

A lot has been said about social media platforms and their possible role in allowing/facilitating harms to the mental wellbeing of their users. The Digital Services Act, as one of the key components of the EU Digital Regulation structure, has, in abstract, the possibility of mitigating these mental harms. However, it’s still necessary to operationalise the concept of “mental wellbeing”, as it remains an unclear term in legal doctrine and case-law. The article co-authored by Przemysław Pałka and Ewa Ilczuk does just that, laying out a conceptual base that both the Commission and VLOPs can work upon to tackle these systemic risks.

Nonetheless, building cases against these platforms hinged on claims of mental harms will require expertise and very solid evidence, as the companies will presumably adopt the same undermining and science-denying strategies that other harmful industries adopt when defending their interests in court. The seeming political straitjacket the Commission currently finds itself in will only hamper this already extremely hard task.

 

By: Rafael Guerra

This blogpost is part of the DigiForce programme, funded by the European Union under the project 101240597.

 

[1]      See, for example, the recent discussions held across different EU Member States’ Parliaments to ban social media access to children under 16, which showcase the increasing skepticism surrounding the current modus operandi of social media platfoms: Euronews, ‘Which European Countries Are Considering Banning Social Media for Children’ (Euronews, 23 December 2025) https://www.euronews.com/next/2025/12/23/which-european-countries-are-considering-banning-social-media-for-children accessed 28 March 2026

[2]     Besides all the studies cited by the article itself, see, for example, Jon Haidt and Zachary Rausch, ‘Social Media Is Harming Adolescents at a Scale Large Enough to Cause Changes at the Population Level’ in John F. Helliwell, Richard Layard, Jeffrey D. Sachs, Jan-Emmanuel De Neve, Lara B. Aknin, and Shun Wang (eds), World Happiness Report 2026 (Wellbeing Research Centre 2026) https://www.worldhappiness.report/ed/2026/social-media-is-harming-adolescents-at-a-scale-large-enough-to-cause-changes-at-the-population-level/ accessed 28 March 2026

[3]    Dara Kerr, ‘Meta and YouTube designed addictive products that harmed young people, jury finds’ (The Guardian, 25 March 2026) https://www.theguardian.com/media/2026/mar/25/jury-verdict-us-first-social-media-addiction-trial-meta-youtube accessed 28 March 2026

[4]    Katie McQue, ‘Meta ordered to pay $375m after being found liable in child exploitation case’ (The Guardian, 25 March 2026) https://www.theguardian.com/technology/2026/mar/24/meta-new-mexico-jury accessed 28 March 2026

[5]     Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on a Single Market for Digital Services (Digital Services Act) [2022] OJ L277/1

[6]    Magdalena Jóźwiak, ‘Waiting for the DSA’s Big Enforcement Moment’ (DSA Observatory, 26 November 2025) https://dsa-observatory.eu/2025/11/26/waiting-for-the-dsas-big-enforcement-moment/ accessed 29 March 2026

[7]   European Commission, ‘Commission Fines X €120 Million under Digital Services Act’ https://digital-strategy.ec.europa.eu/en/news/commission-fines-x-eu120-million-under-digital-services-act accessed 29 March 2026

[8]  European Commission, ‘Commission Preliminarily Finds TikTok’s Addictive Design in Breach of the Digital Services Act’ https://digital-strategy.ec.europa.eu/en/news/commission-preliminarily-finds-tiktoks-addictive-design-breach-digital-services-act accessed 29 March 2026

[9]    European Commission, ‘Commission Opens Formal Proceedings against Meta under the Digital Services Act’ https://ec.europa.eu/commission/presscorner/detail/en/ip_24_2664 accessed 29 March 2026

[10]     European Commission, ‘Commission Opens Formal Proceedings against Temu under the Digital Services Act’ https://digital-strategy.ec.europa.eu/en/news/commission-opens-formal-proceedings-against-temu-under-digital-services-act accessed 29 March 2026

[11]    European Commission, ‘Commission Launches Investigation into Shein under the Digital Services Act’ https://digital-strategy.ec.europa.eu/en/news/commission-launches-investigation-shein-under-digital-services-act accessed 29 March 2026

[12]   Mark Petticrew and others, ‘Challenging the Corporate Playbook’ (2024) 9(11) The Lancet Public Health e950 https://www.thelancet.com/journals/lanpub/article/PIIS2468-2667(24)00167-1/fulltext accessed 29 march 2026; Jennifer Lacy-Nichols, Robert Marten, Eric Crosbie and Rob Moodie, ‘The Public Health Playbook: Ideas for Challenging the Corporate Playbook’ (2022) 10(7) The Lancet Global Health e1067 https://doi.org/10.1016/S2214-109X(22)00185-1 accessed 29 March 2026

[13]Naomi Oreskes and Erik M Conway, Merchants of Doubt: How a Handful of Scientists Obscured the Truth on Issues from Tobacco Smoke to Global Warming (Bloomsbury 2010); Kelly D Brownell and Kenneth E Warner, ‘The Perils of Ignoring History: Big Tobacco Played Dirty and Millions Died. How Similar Is Big Food?’ (2009) 87(1) Milbank Quarterly 259 https://pmc.ncbi.nlm.nih.gov/articles/PMC2879177/ accessed 29 March 2026

[14]  Dara Kerr (n 3)

[15]   Laura Cress, ‘TikTok told to change ‘addictive design’ by EU or face massive fines’ (BBC News, 2026) https://www.bbc.com/news/articles/cr7j7n315lmo accessed 30 March 2026

[16]  In Meta’s case, see Meta’s Internal Research Archive https://metasinternalresearch.org/ accessed 30 March 2026. For TikTok, see Jon Haidt and Zachary Rausch (n 2), ‘Evidence Line Three’

[17] World Health Organization, ‘Tobacco Industry Tactics’ (EMRO, WHO) https://www.emro.who.int/stop_tobacco_industry/tobacco_industry.html accessed 30 March 2026

[18]       Magdalena Jóźwiak (n 6); Suzanne Vergnolle, ‘A New European Enforcer?’ (Verfassungsblog, 2025) https://verfassungsblog.de/a-new-european-enforcer/ accessed 30 March 2026

[19]  Sungkyu Lee, ‘The Tobacco Industry’s Abuse of Scientific Evidence and Activities to Recruit Scientists During Tobacco Litigation’ (2016) 49(1) Journal of Preventive Medicine & Public Health 23 https://pmc.ncbi.nlm.nih.gov/articles/PMC4750512/ accessed 30 March 2026

[20]   See, for example, this blogpost, which predates the DSA’s approval itself. Bengi Zeybek and Joris van Hoboken, ‘The Enforcement Aspects of the DSA and Its Relation to Existing Regulatory Oversight in the EU’ (DSA Observatory, 4 February 2022) https://dsa-observatory.eu/2022/02/04/the-enforcement-aspects-of-the-dsa-and-its-relation-to-existing-regulatory-oversight-in-the-eu/ accessed 30 March 2026

[21]  Liv McMahon, ‘US hits out at EU’s ‘suffocating regulations’ after it fines Elon Musk’s X’ (BBC News, 2025) https://www.bbc.com/news/articles/c4g9kejzvw0o accessed 30 March 2026

[22] Alexandre Alaphilippe, ‘The DSA Showed Teeth against X, but the EU Is Afraid to Call It a Win’ (Tech Policy Press, 2025) https://www.techpolicy.press/the-dsa-showed-teeth-against-x-but-the-eu-is-afraid-to-call-it-a-win/ accessed 31 March 2026; Jan-Ole Harfst, Tobias Mast and Wolfgang Schulz, ‘Independence as a Desideratum’ (Verfassungsblog, 2025) https://verfassungsblog.de/dsa-enforcement-commission/ accessed 31 March 2026