Following an in-depth investigation, the Commission has informed X of its preliminary view that it is in breach of the DSA in areas linked to dark patterns, advertising transparency and data access for researchers.

It is the first time that the Commission has issued preliminary findings under the DSA, which came into force in February, though it is also conducting investigations into the likes of TikTok, Facebook and Instagram.

Prior to Musk’s $44 billion acquisition of Twitter in October 2022, notable individuals and organisations could apply to have a blue tick symbol displayed next to their name to confirm the authenticity of their account – which subsequently became coveted by some users as a status symbol.

Shortly after acquiring the platform, Musk denounced the verification scheme as a “lords and peasants system” and “bullshit”, introducing a new system whereby all paid subscribers to X receive one.

The European Commission says this new system does not correspond to industry practice and deceives users. It negatively affects users’ ability to make free and informed decisions about the authenticity of the accounts and the content they interact with, and there is evidence of motivated malicious actors abusing the “verified account” to deceive users, it said.

The Commission also said X does not comply with the required transparency on advertising, as it does not provide a searchable and reliable advertisement repository, but instead put in place design features and access barriers that make the repository unfit for its transparency purpose towards users.

In particular, the design does not allow for the required supervision and research into emerging risks brought about by the distribution of advertising online, it said.

Finally, the Commission found that X fails to provide access to its public data to researchers in line with the conditions set out in the DSA. In particular, X prohibits eligible researchers from independently accessing its public data, such as by scraping, as stated in its terms of service.

In addition, X’s process to grant eligible researchers access to its application programming interface (API) appears to dissuade researchers from carrying out their research projects or leave them with no other choice than to pay disproportionally high fees.

Having been informed of the Commissoin’s preliminary view that it is in breach of the DSA, X can now exercise its right of defence and respond in writing to the Commission’s preliminary findings.

If the Commission’s preliminary views were to be ultimately confirmed, the Commission would adopt a non-compliance decision finding that X is in breach of Articles 25, 39 and 40(12) of the DSA, which could lead to a fine of up to six per cent of worldwide annual turnover and binding orders requiring measures to address the breach.

A non-compliance decision may also trigger an enhanced supervision period to ensure compliance with the measures the provider intends to take to remedy the breach. The Commission can also impose periodic penalty payments to compel a platform to comply.

Margrethe Vestager, the Commission’s executive vice-president for a Europe Fit for the Digital Age, said: “Today we issue for the first time preliminary findings under the Digital Services Act.

“In our view, X does not comply with the DSA in key transparency areas, by using dark patterns and thus misleading users, by failing to provide an adequate ad repository, and by blocking access to data for researchers.

“The DSA has transparency at its very core, and we are determined to ensure that all platforms, including X, comply with EU legislation.”

Thierry Breton, commissioner for the internal market, added: “Back in the day, ‘blue checks’ used to mean trustworthy sources of information. Now with X, our preliminary view is that they deceive users and infringe the DSA.

“We also consider that X’s ads repository and conditions for data access by researchers are not in line with the DSA transparency requirements.

“X has now the right of defence – but if our view is confirmed we will impose fines and require significant changes.”