Dear DG Connect,

I wish to make a request for documents pursuant to Article 15(3) of the Treaty for the Functioning of the European Union and Article 42 of the European Fundamental Rights Charter, as further developed under Regulation 1049/2001.

I hereby request access to the following documents obtained by the European Commission from the social media platform TikTok under the Digital Services Act:

1. Documents provided by TikTok in response to the European Commission’s request, as referenced in the Commission’s press release of 29 November 2024. Specifically, these documents should detail:
a. TikTok’s analysis and mitigation measures concerning the risk of inauthentic or automated exploitation of its service;
b. Risks stemming from TikTok’s recommender systems;
c. Efforts to enable a wider range of third parties to conduct public scrutiny and access publicly available data to detect, identify, and understand systemic risks related to electoral processes.
2. The ‘retention order' issued to TikTok under the DSA, as announced in the Commission’s press release on 5 December 2024.
3. Any evidence made available within the informal Cyber Crisis Task Force, as referenced in the Commission’s press release on 5 December 2024.
4. Third-party reports regarding TikTok’s conduct in the Romanian elections, as mentioned in the Commission’s press release of 17 December 2024

I acknowledge that the Commission may consider these documents to fall under a general presumption of non-disclosure in relation to the enforcement of the Digital Services Act, as referenced in the annex to its Rules of Procedure of 4 December 2024.

However, as noted by the European Ombudsman Emily O’Reilly in her letter to the Commission on 14 November 2024, the Commission has itself acknowledged that current case law does not establish a general presumption of non-disclosure for investigations conducted under Article 66(1) of the DSA.

The Ombudsman has further stated that "the relevant parts of the DSA applicable to risk assessment reports deviate significantly from the circumstances in which the EU Courts have in the past established the possibility to make use of a general presumption."
In light of this, I contend that any blanket refusal of my request based on a general presumption of non-disclosure would be legally unfounded. I therefore request that the Commission conduct an individual assessment of each document, as required under Regulation 1049/2001.

Furthermore, I assert that there is an overriding public interest in disclosure in this case, given the significant implications of the requested documents for democratic processes, transparency in the enforcement of digital regulation, and electoral integrity.

I believe that this overriding public interest is evident, among others, from the role that TikTok’s systems and the potential exploitation of its service have related to democratic processes in the EU.

Third-party experiments on the role of TikTok’s algorithm in the days leading up to the Romanian elections, conducted through the set-up of new accounts, raise concerns that the platform gave significantly different visibility to different candidates.[1] Other third-party experiments raise similar concerns for democratic debate, such as on its potential radicalising or polarising effects on young people in Austria.[2] In the case of the Romanian elections, further concern regards lacking effectiveness of TikTok’s policy on political advertisement.[3] The Romanian constitutional court annulled the presidential elections – based on partially declassified intelligence reports on foreign interference – holding that the election was unduly influenced by the abuse of algorithms of social media platforms, which distorted voters’ free choice by giving preferential treatment to one candidates.[4] Yet the public still lacks a concrete understanding of TikTok’s impact on European democratic processes.
Such information is crucial to a trustworthy, safe, predictable, and rights-enhancing online environment – which constitutes the aim of the DSA. Only broad transparency and scrutiny of algorithmic choices can counter the risks to democracy of social media platforms algorithms, as whistleblower Frances Haugen – who worked on election integrity – holds.[5] Making more information public would strengthen trust in the fairness and legitimacy of democratic processes in the context of the decision to annul the elections.[6] It would enable informed civic debate on the role played by TikTok algorithms in the election context, its responsibility, and potential responses. In the case of the role of TikTok in the annulled Romanian elections and potential risks and mitigation measures, this interest outweighs potential conflicting interest, particularly given the strong link of the case to democratic processes.

Democracy is a foundational EU value (Article 2 TEU) and decisions shall be taken as openly and as closely as possible to the citizens (Article 10(3) TEU). The bedrock of democratic resilience lies in a civic debate of informed and empowered citizens, which requires strong links between people and democratic institutions. A pluralist public space – where citizens can form and oppress their own opinions, free from interference, either foreign or domestic – is at the core of democracy. It depends on institutions upholding of freedom of information and freedom of expression and an environment where free media, academia and civil society can play their role in stimulating open debate. A key challenge to democratic debate is the use of opaque algorithms by widely used platforms. All this is reiterated in the European Democracy Action Plan and the Communication on Defence of Democracy. In the case of the role of TikTok algorithms in the Romanian elections, there is a strong and overriding public interest in civic debate on the functioning of European democratic processes in the face of platform algorithms. The Commission has a role in facilitating this debate by enabling access to documents for journalists to foster the trust in and resilience of democracy.

As the CJEU affirmed in the context of the non-disclosure of documents, openness on administrative proceedings confers greater legitimacy on the institutions in the eyes of European citizens and increases their confidence allowing them to openly debate various points of views – whereas a lack of information and debate can give rise to doubts of citizens, not only on the lawfulness of an isolated act but also on the legitimacy of the decision-making process as a whole’ (C-506/08P Sweden v Commission and MyTravel). In the context of administrative proceedings to safeguard democratic debate, legitimacy and the absence of doubts on the decision-making process are crucial. With regards to the legislative process, the CJEU held that openness ‘contributes to strengthening democracy by enabling citizens to scrutinize all the information which has formed the basis for a legislative act.’ (T-233/09 Access Info Europe v Council). The same holds true for administrative proceedings on how features and risk management of TikTok might unduly influence elections, given the direct link to democratic debate. Institutions must apply the exceptions provided for in Article 4 Access to Documents Regulation restrictively and provide as wide a right of access as possible, justifying how the disclosure would specifically and actually undermine the protected interest and weighting it against the public interest (C-280/11 P, Council of the European Union v. Access Info Europe). As the Advocate General held in the same case, transparency may be inconvenient when carrying out legislative and non-legislative functions, however democracy is not about making regulators task easier if this means hiding it from public scrutiny. Access to the requested documents enables public scrutiny on the Commission response to concrete and manifested risks to democracy, enhancing legitimacy.

Given the salient public debate on the role of TikTok in the Romanian elections[7], I request access to the requested documents in the context of journalistic reporting. In interpreting the right to freedom of expression and information, the European Court of Human Rights repeatedly reaffirmed the essential role of the press as a ‘watchdog’ within a democratic society to publicly report on all matters of public interest (for example in Axel Springer AG v. Germany [GC], 39954/08, 2012). ‘Public interest regards matters that affect the public to such an extent that it may legitimately take an interest in them, which attract its attention or which concern it to a significant degree, especially in that they affect the well-being of citizens or the life of the community. This is also the case with regard to matters which are capable of giving rise to considerable controversy.’[8] The Court highlighted the role of public institutions as positive guarantors of the right to freedom of expression and information – including by enabling access to information. A refusal to provide access to the documents relevant to public debate violates the right to freedom of expression and information, unless particularly strong reasons are provided for any measure affecting the watchdog role of the press (ECtHR 27 November 2007, 42864/05 Timpul Info-Magazin and Anghel v. Moldova). Otherwise, the public body would hold a ‘censorial power of an information monopoly’ (TASZ v. Hungary) and could hinder journalists from playing their democratically vital role as public watchdogs (ECtHR 25 June 2013, 48135/06, Youth Initiative for Human Rights v. Serbia). The ECtHR repeatedly held that a lack of relevant and sufficient reasoning on the necessity of a restriction or a failure to consider the applicable standards constitutes a violation of the freedom of expression and information (for example Scharsach and News Verlagsgesellschaft v. Austria, Sürek and Özdemir v. Turkey, Lingens v. Austria). Article 11 of the European Charter of Fundamental Rights has the same meaning and scope of the right to freedom of expression and information under the Convention (Article 52 Charter).

I look forward to your response within the timeframe stipulated in Regulation 1049/2001. Should you require any clarification, please do not hesitate to contact me.
Kind regards,

Alexander Fanta
Follow the Money
Rue Auguste Orts 1
1000 Bruxelles

[1] see for example https://globalwitness.org/en/campaigns/d...
[2] see for example https://dietagespresse.com/selbstversuch...
[3] see https://edmo.eu/edmo-news/analysis-of-th...
[4] https://www.ccr.ro/wp-content/uploads/20...
[5] See for example https://www.theguardian.com/technology/2...
[6] https://www.ifes.org/publications/romani...
[7] See for example https://www.lemonde.fr/en/international/...
[8] https://rm.coe.int/guide-on-article-10-f...

Dear European Commission, dear Mr. Daca

I am filing the following confirmatory application with regards to my access to documents request 'TikTok and Romanian elections'.

First, I would like to challenge the notion that investigations under the Digital Services Act fall under a presumption of non-disclosure. No such presumption has been recognized in the Regulation or the case law of the Court of Justice of the European Union.

Second, I was hoping the Commission could clarify the legal basis for the retention order sent to TikTok. The Digital Services Act states in Article 80 that the "Commission shall publish the decisions it adopts pursuant to Article 70(1), Article 71(1) and Articles 73 to 76." I wish to understand whether the Commission's retention order is based on the aforementioned provisions, therefore creating an obligation to publish it (at least in redacted form).

Third, I contend that the Commission has not taken any of the detailed arguments I put forward regarding an overriding interest in disclosure into proper consideration. This failure to engage with any of the points I raised shows, in my view, a failure of the Commission to perform the public interest test, therefore not fulfilling the requirements of the Regulation and the Rules of Procedure.

Yours faithfully,

Alexander Fanta
Follow the Money
Rue Auguste Orts 2
1000 Bruxelles