TikTok claims it is just one social network among many. The EU court’s legal adviser isn’t convinced, backing Brussels in its fight to keep the platform under stricter digital rules.
TikTok owner ByteDance has suffered a setback in its fight against the EU’s digital rules. In the first Digital Markets Act (DMA) case to reach the European Court of Justice, Advocate General Andrea Biondi has advised the court to reject the company’s challenge to its designation as a gatekeeper.
Mr Biondi says ByteDance failed to raise sufficiently strong objections to the European Commission’s assessment. He also argues that the Commission did not breach the company’s right to be heard, although he disagrees with part of the lower court’s reasoning.
In his opinion, he explained that while a company does not have to prove conclusively, at a preliminary stage, that it is not a gatekeeper, “merely casting doubt” on it is not enough. The fact that users also use other social networks does not, in itself, show that TikTok is not an important gateway, he added.
The Advocate General’s opinion is not legally binding on the court, but it is followed in the vast majority of cases.
Not just another app
The Commission designated ByteDance as a gatekeeper under DMA in September 2023. It classified TikTok as an online social networking service.
ByteDance had argued that, despite meeting the relevant thresholds, it should not be designated. According to the company, TikTok lacked a wider ecosystem, faced competition from other social networks used by the same people and did not hold the entrenched market position implied by its user numbers.
The Commission was unimpressed with its arguments and did not open any further investigation. ByteDance eventually appealed to the Court of Justice.
Gatekeeper rules
The DMA defines gatekeepers as large digital platforms that provide core platform services, such as app stores, search engines or social networks. Designated gatekeepers are deemed to have dominant, entrenched market positions. There must therefore follow additional strict competition rules. These include no self-preferencing, providing basic interoperability with competing platforms and allowing users to easily uninstall pre-installed apps or change default settings.
Gatekeepers, who often have several different services, are also banned from combining personal data collected from a core service with data from other services without explicit consent. Breaking these rules can result in fines of up to ten per cent of a company’s total worldwide annual turnover.
To date, seven companies have been designated gatekeepers: Alphabet (Google Search, Chrome, Android, YouTube, etc.), Amazon, Apple, Meta, Microsoft, Booking.com as well as ByteDance.
Apple and Meta also challenged their designations. Apple was unsuccessful, but Meta did manage to have its Facebook Marketplace service designation annulled.
Similar DSA case
Earlier in the week, the Commission had another win in designations of Big Tech, this time under the Digital Services Act (DSA). On Wednesday, the General Court dismissed online adult entertainment platform Stripchat’s efforts to have its designation as a very large online platform (VLOP) overturned.
Like gatekeepers under the DMA, VLOPs under the DSA are subject to extra rules and regulations. The threshold is 45 million average monthly active users in the EU.
