Higher Regional Court of Bamberg: TikTok cheats on DSA obligations

TikTok tries to circumvent obligations under the Digital Services Act (DSA). Technically and legally.

Who is supposed to understand that...

(Image: Daniel AJ Sokolov)

Apr 1, 2026 at 9:01 am CEST

5 min. read

By

Daniel AJ Sokolov

Higher Regional Court of Bamberg: TikTok cheats on DSA obligations

TikTok must reprogram its website for users in Germany, rules the Higher Regional Court of Bamberg (OLG). The current design violates the EU regulation known as DSA (Digital Services Act, also Law on Digital Services) in several ways. TikTok must make it easy for users to turn off the use of personal data for selecting the videos to be displayed.

Furthermore, the reporting of illegal content must be designed to be user-friendly. According to the judgment ( 3 UKl 5/25 e) obtained by the Bavarian Consumer Association, neither is the case, although the DSA prescribes this in Article 38 and 16 respectively.

As the case is of fundamental importance, but there is no case law on the relevant legal questions yet, the OLG allowed an appeal to the Federal Court of Justice in its first-instance final judgment of March 18. TikTok will likely take advantage of this and has not yet improved its website. The court did not follow TikTok's suggestion to refer certain legal questions to the European Court of Justice (ECJ) first.

TikTok does not want to face the proceedings

In the proceedings, TikTok initially tried to deny the consumer association the right to sue. The DSA serves competition regulation and not consumer protection; moreover, only the European Commission is authorized to enforce it, and it has not objected to the website. And besides, non-consumers also access the website.

These arguments did not hold up at the OLG Bamberg. On the one hand, the passages of the DSA relevant to the lawsuit are clearly consumer-protective; on the other hand, the German Act on Injunctions in cases of violations of consumer law and other infringements (UKlaG) expressly grants the consumer association the right to sue for violations of such DSA passages. The DSA provision that the EU Commission is responsible for enforcement serves to distinguish it from other administrative authorities, but does not preclude court proceedings under the UKlaG.

Interface tricks

According to Article 38 DSA, users have the right to prohibit TikTok from feeding its algorithm a profile of personal data. However, TikTok has hidden this option exceptionally well. Users must right-click on a video or an advertised product image and then select “Manage feed” in the context menu.

Context menu with the entries "Send to a friend", "Copy link", "Manage feeds" and "Show video details" — Only by right-clicking on a video or a displayed product do you get to this menu – if the browser cooperates. Under "Manage feeds" you can then request that the algorithm does not use a personal profile.

(Image: Tiktok (Screenshot))

This path is anything but obvious. During the editorial team's attempt, the context menu only appeared in one out of three web browsers; the other two browsers showed their context menu. And the privacy option cannot be found via the TikTok menus that can be accessed via the known three dots. Thus, the de-personalization function on TikTok's website is immediately accessible but not easily accessible, which violates the DSA's requirements.

Videos by heise

Reporting illegal content according to the DSA is indeed accessible via the three-dot menu in the upper right corner of the respective video – but well hidden. First, “Report” must be selected, which brings up a series of options. Among them are “Hate and harassment”, “Fraud and scams” or “Counterfeits and intellectual property”, which are indeed illegal offenses.

Only this way is reporting correct

But whoever thinks they have filed a report according to Article 16 DSA is mistaken. TikTok only considers this an indication of a violation of its guidelines and does not implement the measures provided for in the DSA. Users cannot add a reason or contact details. This means that not only the acknowledgment of receipt and information about the decision on the report are omitted, but TikTok also considers itself exempt from liability. Only with reports according to Article 16 DSA is TikTok formally considered to be aware and must take measures if necessary.

Screenshot of a "Report" context menu: "Please select a scenario", followed by eleven entries such as "Violence, abuse and criminal exploitation", "Hate and harassment" or "Fraud and scams" — Whoever clicks here might click wrong. The legally binding report according to the Digital Services Act can only be made via the option "Report illegal content", which is not visible here. It only becomes visible by scrolling down. This is inconvenient, says the court.

(Image: TikTok/Daniel AJ Sokolov (bearbeiteter Screenshot))

Only those who scroll down below the page break in the menu and select “Report illegal content” can add more detailed information and their contact details. However, this only becomes apparent after selecting it. “In fact, it often depends on chance which button the user presses and therefore also whether they initiate a reporting procedure that meets the requirements of Art. 16 DSA,” explains the OLG its injunction. “The user is therefore made to find this reporting procedure in such a way that it is associated with inconvenience, contrary to the requirement of user-friendliness.”