Computer Law & Security Review 59 (2025) 106181

Contents lists available at ScienceDirect

Computer Law & Security Review: The International

Journal of Technology Law and Practice
journal homepage: www.elsevier.com/locate/clsr

The regulation of social media commerce under the DSA: A consumer

protection perspective
Laura Aade
Faculty of Law, Economics and Finance, University of Luxembourg, 4 rue Alphonse Weicker, L-2721 Luxembourg, Luxembourg

A R T I C L E I N F O A B S T R A C T

Keywords: Social media commerce, defined as the direct selling of goods and services through social media, is emerging as a
Social media commerce prominent business model in the platform economy. As social media platforms introduce e-commerce features,
Social media they are becoming what I call social marketplaces: a new category of online platforms found at the intersection of
Consumer protection
social networks and online marketplaces. This article examines how the Digital Services Act (DSA) protects
Digital Services Act
Platform liability
consumers in relation to social media commerce, and what specific obligations it imposes on social marketplaces
E-commerce to increase transparency in online transactions. While the DSA does not explicitly address social media com­
merce, it indirectly applies through Section 4 which imposes obligations on ‘online platforms allowing consumers
to conclude distance contracts with traders’. I argue that because social marketplaces fall within this category of
online platforms, they are subject to the obligations laid down in Section 4 DSA, namely Article 30 DSA
(traceability of traders), Article 31 DSA (compliance by design), and Article 32 DSA (right to information). This
article critically analyses the application of these provisions to social marketplaces and examines their inter­
action with EU consumer laws. Based on the analysis, it identifies three shortcomings in the DSA’s approach to
protecting consumers on social marketplaces: (i) regulatory complexity due to overlaps with the EU consumer
acquis, (ii) interpretative ambiguity, as the DSA was not designed with social marketplaces in mind, and (iii) an
enforcement gap specific to social media commerce. Rather than calling for new legislation, this article concludes
that effective consumer protection on social marketplaces requires clarifying the interaction between legal in­
struments, interpreting existing provisions in light of evolving platform practices, and ensuring coordinated
enforcement across relevant actors.

1. Introduction This recent development raises questions about the protection of

consumers who engage in commercial transactions with third-party
The nature of social media has drastically changed over time. sellers on social media. However, despite its growing relevance, social
Initially, social media served as a space for users to connect and engage media commerce remains understudied from a consumer law perspec­
with each other by sharing content. However, the rise of new consum­ tive. Essentially, it is unclear which consumer protection rules apply to
erist business models is creating a paradigm shift in the way social media social media platforms adopting this emerging business model. In its
are used today. Recognising the profitability of convenient online report on the Digital Fairness Fitness Check, the European Commission
shopping experiences, several social media platforms have integrated e- classified social media commerce as a problematic practice for current
commerce features into their services. Facebook launched its own consumer protection frameworks, which may not be sufficient to address
‘Marketplace’ for peer-to-peer transactions [1], TikTok introduced this phenomenon [4]. Consequently, it is crucial to provide academic
‘Video Shopping Ads’ to boost product sales based on personalised support to regulators and enforcement authorities in order to ensure that
advertising [2], and Instagram developed ‘Shopping Tags’ to reveal consumers are protected on social marketplaces, expected to be a
product features, price, and a link to purchase [3]. Social media are no game-changer for the digital economy [5].
longer just about social interactions, they are also becoming commercial This article analyses how the Digital Services Act (DSA) protects
hubs. This phenomenon is called social media commerce, and has consumers in relation to social media commerce, and what specific
transformed social media platforms into, what I call, social obligations it imposes on social marketplaces to increase transparency in
marketplaces. online transactions [6]. In doing so, it makes three innovative

E-mail address: laura.aade@uni.lu.

https://doi.org/10.1016/j.clsr.2025.106181

Available online 5 September 2025

2212-473X/© 2025 The Author. Published by Elsevier Ltd. This is an open access article under the CC BY license (http://creativecommons.org/licenses/by/4.0/).
L. Aade Computer Law & Security Review: The International Journal of Technology Law and Practice 59 (2025) 106181

contributions to existing scholarship found at the intersection of con­ trend began around 2015 in the EU, when Facebook experimented with
sumer protection and platform governance: (i) it sheds light on the ‘Buy Buttons’ to facilitate direct purchases from brand pages [16].
e-commerce practices of social media platforms in the EU, (ii) analyses Despite its innovative approach, the feature did not gain significant
the impact of the DSA on consumer protection in the context of social traction due to technical limitations as well as user hesitation [17].
media commerce, and (iii) assesses its coherence with legal instruments However, the COVID-19 pandemic has sparked a renewed interest in
in the EU consumer acquis, highlighting both synergies and potential social commerce, as the closure of physical stores and social distancing
areas of tension. This article is structured as follows. First, it defines the accelerated the shift towards online shopping. In response, an increasing
concept of social media commerce and provides an overview of how number of social media platforms have (re-)integrated e-commerce
social media platforms facilitate commercial transactions in the EU, features into their services [18], leading to the emergence of what I call
distinguishing between formal and informal social marketplaces social marketplaces – a new category of online platforms found at the
(Section 2). It then critically examines how the DSA applies to these intersection of social networks and online marketplaces (see Section 3.1
emerging practices in order to protect consumers, focusing on the below).
interplay with existing consumer laws (Section 3). In Section 4, I identify Interestingly, the roll-out and sophistication of e-commerce features
three shortcomings in the DSA’s approach to consumer protection in on social media vary not only between platforms, but also across EU
social media commerce, before concluding (Section 5). Member States for the same platform. In some jurisdictions, social media
platforms facilitate the entire shopping experience of consumers by
2. Social media commerce as a native way to shop on social allowing product discovery, by hosting product listings of third-party
media sellers, and by directly processing payments. In other markets, howev­
er, the same platforms may only provide partial e-commerce features:
2.1. What is social media commerce? consumers interact with promotional content, but are redirected to
third-party websites via in-app browsers to finalise their purchases. To
The concept of social media commerce is constantly evolving, reflect these variations, I distinguish between two types of social mar­
resulting in a variety of definitions across disciplines [7]. A closer look at ketplaces, namely formal and informal social marketplaces, respectively
existing literature reveals two central approaches to defining social described in the following sub-sections. This distinction is not merely
media commerce. It should be mentioned that this article uses the terms descriptive and bears important legal implications: the extent to which a
‘social media commerce’ and ‘social commerce’ interchangeably, in line social media platform is involved in the transaction directly impacts how
with the terminology adopted by the European Commission and existing the DSA applies in practice and its level of compliance with the relevant
literature. provisions, as it will be shown in the analysis.
The first approach to defining social media commerce focuses on its
social aspect. Scholars highlight the influence of digital communities on 2.2.1. Formal social marketplaces
shopping experiences through, for instance, the use of online reviews Formal social marketplaces are social media platforms where the
[8]. Kim defines social commerce as a “subset of electronic commerce that entire transaction journey, from product discovery to payment pro­
uses social media, online media that supports social interaction and user cessing, is facilitated by the platform itself. They mirror the convenience
contributions, to enhance the online purchase experience” [9]. Similarly, and transaction flow of traditional e-commerce sites, such as Amazon or
Curty and Zhang emphasise the collaborative nature of social commerce, eBay [19], with one main difference: shopping is integrated into an
where users can interact in online spaces to explore shopping opportu­ interactive and social environment. Product discovery in this context is
nities [10]. In that sense, social media platforms act as forums for both intentional (e.g. via search tools) and ambient, emerging organi­
peer-to-peer influence and validation: they shape purchasing decisions cally through everyday scrolling behavior, influencer promotion as well
and consumer preferences through the power of online word-of-mouth as algorithmic curation. What sets this category of social marketplace
[11]. This socio-centric perspective to social commerce reflects the apart is the involvement of the platform which hosts product listings,
proliferation of user-generated content on social media [12]. For enables in-app purchases, and processes payments directly.
instance, unboxing videos on YouTube allow content creators to docu­ A leading example is TikTok Shop, described by the platform itself as
ment product experiences and influence viewers’ purchasing decisions. “a completely personalised and fully integrated commercial solution, where
More recently, live-streaming events hosted by brands on Instagram sellers can authentically connect with creators and communities to drive
have become interactive spaces where audiences ask questions and meaningful shopping experiences” [20]. After launching in the United
discuss products features in real-time. States, Southeast Asia, and the United Kingdom, TikTok Shop entered
The second approach to defining social media commerce centers on the EU market in December 2024, starting with Ireland and Spain, after
its transactional aspect. It essentially focuses on the integration of e- a series of delays [21]. As of this writing, TikTok Shop provides four
commerce activities within social media ecosystems. According to native ways to shop on its infrastructure: (i) LIVE Shopping where users
Sturiale and Scuderi, social commerce is a “special kind of e-commerce can buy products in real time during livestreams hosted by brands or
that allows the interaction between merchants and consumers in a social creators, (ii) Shoppable Videos which embed clickable product links into
environment, such as Facebook” [13]. Liang and Turban offer a similar short-form videos appearing in user feeds, (iii) Shop Pages which serve
definition, describing social commerce as "the delivery of e-commerce as curated storefronts linked to brand or creator profiles, and (iv) Shop
activities and transactions via the social media environment" [14]. Legal Tab that is the dedicated marketplace interface of TikTok where con­
scholars, such as Goanta or Riefa, adopt this perspective by linking social sumers can browse products across categories, independently of their
commerce to the use of social media platforms in facilitating trans­ content feed. However, as the following sub-section will demonstrate,
actions [15]. In the same way, the European Commission describes so­ this level of e-commerce integration on social media is not yet uniform
cial media commerce as the direct selling of goods and services to across the EU.
consumers through social media platforms [4]. And for that reason, I
follow this transactional approach to social media commerce in this 2.2.2. Informal social marketplaces
article. In most EU Member States, social media platforms operate as
informal social marketplaces. While they have incorporated elements of
2.2. How do social media platforms engage in e-commerce in the EU? e-commerce (e.g. ‘Show Now’ buttons, product tags, or clickable links),
these platforms do not directly support in-app purchases. Instead, when
Defining social media commerce through a transactional lens mirrors users engage with these elements, they are redirected to the third-party
the introduction of e-commerce features by social media platforms. This seller’s website via the in-app browser of the app, bypassing the need for

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external browsers like Safari or Chrome. According to Meta, this tech­ the UCPD, further describes an online marketplace as an online platform
nique aims to enhance user experience by allowing them to view and enabling consumers to buy products offered by third-party suppliers
interact with external web content without leaving the social media app directly on its interface (emphasis added) [31]. This interpretation sug­
[22]. It essentially removes the need to switch between apps or to gests that, to legally qualify as an online marketplace, a social media
re-enter information, such as credentials or URLs, to engage with platform must enable the transaction to be completed within its own
content. interface, without requiring consumers to navigate away from its
Consequently, the final steps of the transaction, such as entering environment.
payment details and completing the purchase, take place on the third- For formal social marketplaces (see Section 2.2.1 above), one can
party seller’s website – although consumers technically stay within the easily conclude that they meet the legal definition of an online
social media app [4]. Another defining feature of informal social mar­ marketplace. In such cases, consumers solely interact with the interface
ketplaces is that product discovery is largely passive and incidental. of the social media platform to purchase goods or products offered by
Consumers come across products while browsing organic content, but third-party sellers. However, the same clarity does not apply to informal
are not offered the tools to actively search, filter, or compare products social marketplaces, where consumers are redirected to external web­
within the platform itself. Table 1 below summarises the core differences sites via the in-app browser of the platform to complete transactions (see
between formal and informal social marketplaces, as introduced in both Section 2.2.2 above). This situation raises the following question: can
sub-sections. the in-app browser of a social media app be considered part of its online
interface (and by extension, can informal social marketplaces be legally
3. Consumer protection rules relevant to social media commerce classified as online marketplaces)? The answer depends on how the
under the DSA concept of ‘online interface’ is defined under EU law. Articles 2(16) of
the Geo-Blocking Regulation [32] and 3(15) of the Consumer Protection
3.1. Social media commerce under the DSA Regulation [33] define an online interface as “any software, including a
website or an application, that is operated by or on behalf of a trader, and
The DSA aims to safeguard and improve the functioning of the in­ which serves to give consumers access to the trader’s goods or services” [34].
ternal market for intermediary services by establishing rules for a safe, Given its embedded functionality, one could consider the in-app browser
predictable, and trusted online environment [23]. While it addresses to be an integral part of a social media interface. Despite displaying
digital advertising [24] and consumer sales through online marketplaces content from third-party websites, it operates entirely within the tech­
[25], the DSA does not explicitly regulate issues related to social media nical and operational environment of the social media app. Its purpose is
commerce, such as in-app browsers or buy buttons [26]. However, I not merely to relay content, but to offer a seamless browsing experience
argue that it tackles it indirectly by providing a set of rules specifically – one that keeps consumers within the platform ecosystem, while
applicable to ‘online platforms allowing consumers to conclude distance facilitating access to external goods and services. What is crucial,
contracts with traders’ in Section 4 [27]. Whether social marketplaces however, is that in-app browsers are not passive or neutral conduits. As
fall within this category of online platforms is not expressly stated, but I further discussed (see Section 3.2.3 below), social media platforms
take the view that they do for the reasons developed below. retain substantial control over these environments: they can monitor
‘Online platforms allowing consumers to conclude distance contracts user behavior, track interactions, and even collect behavioral data when
with traders’ are typically referred to as ‘online marketplaces’ under users navigate third-party content [35]. This level of oversight re­
European consumer law. Articles 2(17) of the Consumer Rights Directive inforces the view that in-app browsers are embedded interfaces operated
(CRD) [28] and 2(n) of the Unfair Commercial Practices Directive by the platform itself. Accordingly, they satisfy both criteria to be legally
(UCPD) [29] define an online marketplace as a “service using a software, considered part of a platform interface: in-app browsers are software
including a website, part of a website or an application, operated by or on operated by a social media provider that enable access to third-party
behalf of a trader which allows consumers to conclude distance contracts with goods or services.
other traders and consumers”. According to Recital 25 of the Modern­ Following this reasoning, both formal and informal social market­
isation Directive, this definition should be adapted to technology ad­ places qualify as online marketplaces, and hence as ‘online platforms
vancements in order to ensure its applicability to emerging technologies allowing consumers to conclude distance contracts with traders’ under
[30]. The European Commission, in its guidance on the application of the DSA. However, the latter presents in its recitals ‘social networks’ and
‘online platforms allowing consumers to conclude distance contracts
with traders’ as two distinct categories of online platforms [36]. Recital
Table 1
13 DSA, for instance, explicitly refers to “online platforms, such as social
Key differences between formal and informal social marketplaces.
networks or (emphasis added) online platforms allowing consumers to
Feature Formal social marketplaces Informal social marketplaces conclude distance contracts with traders” [37]. Although recitals have
Platform role in Facilitates the entire Facilitates only part of the no binding legal force [38], this language nevertheless reveals that the
transaction transaction journey from transaction journey, which is DSA was drafted with these categories in mind as mutually exclusive –
product discovery to payment limited to product discovery failing to recognise that social media platforms with e-commerce fea­
Checkout Payment is processed directly Payment is processed on
experience by and on the platform external websites accessed
tures also qualify as online marketplaces. As noted in the study sup­
through the platform’s in-app porting the Digital Fairness Fitness Check, the boundaries between
browser social media platforms and online marketplaces are becoming increas­
Product Both ambient (algorithmic Exclusively ambient, no tools ingly blurred with the rise of social commerce [26]. In light of these
discovery feeds, influencer promotion) available for structured search
developments, I argue that a new category of online platforms has
and intentional (via search or comparison
tools) emerged which lie at the intersection of social networks and online
Availability in Limited rollout, only available Most common form of social marketplaces: social marketplaces. Because such platforms legally qualify
the EU in selected EU Member States media commerce in the EU, as ‘online platforms allowing consumers to conclude distance contracts
widely adopted across with traders’, they must comply with the provisions set out in Section 4
Member States
Examples TikTok Shop (currently Instagram posts with product
DSA to protect consumers.
available in Ireland, Spain, tags, TikTok videos with Before turning to a detailed examination of each provision in the
France, Germany, and Italy), ‘Shop Now’ buttons context of social media commerce, the following section situates Section
Instagram Shops with in-app 4 DSA within the broader framework of EU consumer law. It first
checkout
highlights how Section 4 DSA contains obligations directly relevant to

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consumer protection and examines their intersection with the EU con­ another in regulating online intermediaries, including social market­
sumer acquis. Such analysis aims to shed light on the fragmented nature places. Article 2(4) DSA addresses (or at least, tries to address) this issue
of the consumer protection regime applicable to social media commerce, by clarifying that “this Regulation is without prejudice to the rules laid down
as noted by the European Commission [4]. Building on this, it critically by other Union legal acts regulating other aspects of the provision of inter­
analyses how each provision of Section 4 DSA applies to social mar­ mediary services”, and point (f) provides consumer protection as an
ketplaces and interacts with existing consumer protection instruments, example of legal acts. Essentially, this ‘without prejudice’ clause entails
such as the CRD and UCPD. that the DSA, based on a horizontal approach, should be consistent with
and should leave unaffected other areas of law [49]. In this context, the
3.2. Section 4 DSA and the interplay with EU consumer law following sub-sections take a closer look at how the provisions set out in
Section 4 DSA apply to social marketplaces, with a particular emphasis
Section 4 DSA contains three key provisions: Article 30 DSA on the on their interaction with existing consumer protection rules.
traceability of traders, Article 31 DSA on compliance by design, and
Article 32 DSA on the right to information. These provisions are directly 3.2.1. Article 30 DSA on traceability of traders
relevant to consumer protection, as they aim to protect one specific Under Article 30(1) DSA, ‘online platforms allowing consumers to
category of recipients of the service, namely consumers. This focus is no conclude distance contracts with traders’ must obtain information from
coincidence. While the DSA is often associated with content moderation traders before allowing them to use their e-commerce services. Such
matters [39], it is equally committed to achieving a high level of con­ information essentially concerns the legal status and identity of traders,
sumer protection and effectively protecting fundamental rights including their name, their payment account details, and a copy of their
enshrined in the Charter of Fundamental Rights of the European Union, identification document. The wording of this ‘know-your-business-
such as the principle of consumer protection [40]. This commitment to customer’ suggests that not all third-party sellers must provide such
consumer protection is rooted in Article 12 of the Treaty on the Func­ information, but only those legally qualifying as traders. In this sense, a
tioning of the European Union (TFEU), which requires the EU to take critical aspect in applying Article 30 DSA revolves around identifying
consumer protection into account while defining and implementing its who, among third-party sellers on social marketplaces, is considered a
policies as well as activities [41]. Interestingly, the consumer protection trader.
obligations found in the DSA illustrate a broader shift in the way EU It is precisely in this type of situation that the interaction between the
consumer law is evolving today. Rather than relying on traditional DSA and sectoral regulation, including the EU consumer acquis, becomes
contract law instruments like the CRD, consumer protection rules are relevant. Legal instruments, such as the CRD and UCPD, impose related
increasingly emerging from public law market regulation, such as the yet distinct obligations on online intermediaries regarding the distinc­
DSA [42]. This shift aligns with what Micklitz refers to as ‘regulatory EU tion between third-party sellers and traders. Articles 6a(1)(b) CRD and 7
private law’: a form of private law that serves not only to safeguard (4)(f) UCPD require online marketplaces to inform consumers whether
individual autonomy, but also to structure the internal market in line the third-party offering the product or service is a trader or not, based on
with political and economic objectives [43]. Yet, as cautioned by a declaration of that third-party. Although this self-declaration is a
Namysłowska, this evolution risks weakening the foundational princi­ useful indication of the seller’s status, it is not decisive from a legal
ples of consumer law, such as fairness and professional diligence, by standpoint and does not replace the qualification of a trader under the
subordinating them to broader market logics [44]. law [31]. Article 3(f) DSA defines a trader as “any natural person, or any
That said, Section 4 DSA does not stand alone in protecting con­ legal person irrespective of whether it is privately or publicly owned, who is
sumers who engage in commercial transactions on social media. In fact, acting, including through any person acting in his or her name or on his or her
social media commerce also falls under the scope of EU consumer laws, behalf, for purposes relating to his or her trade, business, craft or profession”
particularly the CRD and UCPD [26]. Similarly to the DSA, these legal [50]. As confirmed on multiple occasions by the CJEU, the notion of
instruments do not explicitly address this phenomenon, but impose a ‘trader’ is functional [51]: determining if a third-party seller on a social
number of obligations on social media platforms when they act as online marketplace falls within its meaning must be done on a case-by-case
marketplaces (see Section 3.1 above) [4]. Imposing duties on online basis. And to do so, national courts must take into account a list of
intermediaries marks a clear shift from the original logic of EU consumer non-exclusive and non-exhaustive criteria developed in the Kamenova
law, initially designed to protect consumers (i.e. natural person who case [52].
appears in the market without any profit-making intentions) in their Determining whether a user qualifies as a trader is particularly
‘bipolar interactions’ with traders (i.e. natural or legal person acting for challenging in the context of social marketplaces. Unlike traditional e-
professional purposes) [45]. Over time, however, it has evolved into a commerce platforms, where sellers are typically established pro­
legal field which also imposes consumer protection obligations on online fessionals, users on social media often engage in mixed-purpose activ­
intermediaries, due to their pivotal role in facilitating commercial ities. They may use the same account to browse content and interact
transactions. This trend started with the adoption of the Modernisation socially with others, while promoting or selling goods and services –
Directive which introduced several provisions specifically applicable to making it difficult to assess whether they act as consumers or traders
online marketplaces [46], and has been since reinforced by the Court of [53]. This ambiguity is acknowledged in Recital 17 CRD, clarifying that
Justice of the European Union (CJEU) in its case law. In the Tiketa case, a natural person may still be considered a consumer in such circum­
for instance, it confirmed that online intermediaries can bear consumer stances “if the trade purpose is so limited as not to be predominant in the
protection obligations under the CRD [47]. The DSA further contributes overall context of the contract”. The CJEU has echoed this reasoning in the
to this trend by introducing consumer protection rules tailored to online YYY case, confirming that this classification depends on the dominant
platforms, thereby moving beyond the traditional binary relation be­ purpose of the activity [54]. In practice, this means that even individuals
tween consumers and traders [48]. engaged in occasional sales or promotions on social marketplaces may
The EU legal framework applicable to social commerce is therefore still retain their consumer status – unless the professional aspect out­
highly fragmented, with consumer protection rules arising from sectoral weighs the personal one. These grey areas have led to the emergence of
(e.g. CRD, UCPD) and non-sectoral regulation (e.g. DSA) [26]. All of the so-called prosumer: a natural person who both consumes and pro­
these frameworks aim to ensure that consumers are treated fairly, but duces, often in semi-professional ways that escape straightforward legal
their coexistence raises important questions about how they interact – a categorisation [55].
concern that was also voiced by Member States during the adoption of Influencers, also referred as content creators [56], exemplify this
the DSA [49]. More specifically, it remains unclear to what extent these ambiguity, as their dual role in consuming and promoting content often
legal regimes complement, overlap with, or potentially contradict one places them at the intersection of consumers and traders [57]. In its

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guidance on the application of the UCPD, the European Commission minimum standard between what traders must disclose and what plat­
suggests that content creators who frequently conduct promotional ac­ forms must facilitate.
tivities towards consumers on their social media accounts are likely to be Similarly, ‘online platforms allowing consumers to conclude distance
classified as traders, irrespective of their audience size [31]. Still, this contracts’ were also implicitly required under the UCPD to comply with
determination must ultimately be made by national courts on a the obligation found in Article 31(1) DSA based on two grounds. First,
case-by-case basis, drawing on the functional definition of trader and the Article 7(4) UCPD establishes a list of pre-contractual information,
non-exhaustive set of criteria developed in the Kamenova case [52]. The similar to Article 6(1) CRD, that traders must provide to consumers in
informal and hybrid nature of social marketplaces therefore challenges case of an invitation to purchase. Second, these platforms were also
the binary classification consumer-trader underpinning EU consumer required to design and organize their interface in a specific manner due
law – originally designed for more traditional and structured commer­ to their ‘professional diligence’ obligations under Article 5(1) UCPD
cial environments (see Section 3.2 above). This, in turn, complicates the [63]. In its guidance on the application of the UCPD, the European
application of Article 30 DSA which relies on the same binary distinction Commission states that online platforms, as part of their professional
to trigger platform obligations. diligence, should take appropriate measures to allow traders to comply
Faced with this legal uncertainty, social marketplaces should there­ with their consumer law obligations [31]. These measures may include
fore primarily rely on the self-declaration made by third-party sellers on designing “their interfaces in a way that enables third party traders to
their status as traders, as requested under Articles 6a(1)(b) CRD and 7(4) present information to platform users, especially information required by
(f) UCPD, to comply with Article 30 DSA. In case third-party sellers Articles 6 CRD and 7(4) UCPD” [31]. In this way, Article 31 DSA for­
declare that they are not traders, social marketplaces must inform con­ malises an obligation that already existed under the EU consumer acquis,
sumers about the non-applicability of EU consumer protection laws to using almost the exact same wording as the European Commission in its
the contract [58]. Conversely, if third-party sellers consider themselves guidance on the application of the UCPD.
as traders, they fall within the scope of Article 30 DSA and must provide Traditional e-commerce platforms, such as Amazon or eBay, have
the information mentioned therein to social marketplaces. In the latter long adapted their online interfaces to comply with EU consumer law,
scenario, platforms must make best efforts to verify the reliability and offering templates for product listings, seller information, return pol­
completeness of such information, according to Article 30(2) DSA. icies, and other mandated disclosures. Social marketplaces, by contrast,
Interestingly, this due diligence obligation does not exist yet in the EU have yet to achieve comparable levels of compliance. Formal social
consumer acquis. However, what could have been a valuable opportu­ marketplaces, such as TikTok Shop, do provide some technical infra­
nity to enhance consumer protection was in reality a missed chance to structure for traders to input product details. But these efforts remain
establish a robust and uniform standard across platforms. The DSA fails limited: information about the trader’s identity is not prominently dis­
to clarify what is meant by ‘best efforts’, which creates a challenge in played at the point of transaction, but is typically accessible via their
setting a clear threshold for compliance. What is clear, however, is that profile, often confined in the bio section. Informal social marketplaces
verifying the information provided by traders should not lead to a offer even less support to traders using their e-commerce features, as
general monitoring or an active fact-finding obligation for social mar­ they lack a structured interface for displaying pre-contractual informa­
ketplaces, as prohibited under Article 8 DSA [59]. tion. Although traders can include this information on their own web­
sites accessed through in-app browsers, Article 31(2) DSA requires
3.2.2. Article 31 DSA on compliance by design platforms to actively design and organize their interface in a way that
Article 31(1) DSA requires ‘online platforms allowing consumers to makes such information directly accessible on the platform itself. I
conclude distance contracts with traders’ to design and organize their therefore argue that merely redirecting consumers to external pages
interface in a way that enables traders to comply with their own legal does not fulfil this obligation, nor does it ensure the level of visibility and
duties. I argue that this compliance-by-design provision does not bring clarity envisioned by the DSA.
anything revolutionary to the consumer protection landscape. Instead, it Yet beyond these differences lies a more fundamental issue. The
codifies an existing (although implied) obligation arising from the CRD compliance-by-design obligation set out in Article 31 DSA presumes that
and UCPD. platform architectures are sufficiently neutral and adaptable to support
To begin with, the obligation laid down in Article 31(1) DSA already legal compliance – an assumption that does not hold true for social
implicitly stemmed from the disclosure duties established in the CRD for media platforms. Article 31 DSA imposes a technical obligation on on­
distance contracts. More specifically, Article 6(1) CRD requires traders line platforms to enable traders to comply with their own legal duties,
to provide pre-contractual information to consumers about their prod­ suggesting that interface design can effectively be adapted to support
ucts or services. However, as traders heavily rely on the affordances of such compliance. However, this overlooks a crucial point: social media
social marketplaces, they might encounter technical limits if the plat­ platforms are structurally optimized for conflicting objectives, such as
form does not offer sufficient space to comply with this obligation. persuasive design and attention capture [64]. Their core architecture is
Consequently, as argued by Cauffman and Goanta, social media plat­ designed to exploit the vulnerabilities of users [65], rather than to
forms already had an implicit obligation under the CRD to design and support meaningful transparency in online transactions. Social media
organize their online interface in order to enable traders to fulfil their interfaces are built around a logic of entertainment and emotional im­
disclosure duties [60]. When providing pre-contractual information to mersion [66], not one of standardization and legal certainty. Even when
consumers, traders must also comply with the formal requirements e-commerce features are added, they remain embedded in interfaces
applicable to distance contracts, laid down in Article 8 CRD. Interest­ engineered for frictionless scrolling and passive content consumption
ingly, Article 8(4) CRD acknowledges that traders using distance [67], leaving little room for structural transparency under EU law.
communication (e.g. social media) may have limited space to provide
information, and specifies the essential details to disclose in these cir­ 3.2.3. Article 32 DSA on right to information
cumstances [61]. At the same time, Article 31(2) DSA lists the infor­ Under Article 32(1) DSA, ‘online platforms allowing consumers to
mation that social marketplaces must at least enable traders to provide conclude distance contracts with traders’ are required to notify con­
while designing and organizing their online interface [62]. What is sumers when they become aware that those consumers have purchased
interesting is that the information mentioned in the CRD and the DSA do an illegal product or service offered through their services. The notifi­
not entirely overlap. Article 8(4) CRD prioritises information directly cation must include information about the illegal nature of the product
relevant to the contractual decision of consumers (e.g. price, right of or service, the identity of the trader, and any relevant means of redress.
withdrawal), whereas Article 31(2) DSA focuses on trader traceability Importantly, this obligation applies only to transactions concluded
and product identification. This situation leads to a discrepancy in the within six months prior to the platform becoming aware of the illegal

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activity. marketplaces to comply. Second, enforcement authorities may lack the

Article 32(1) DSA operates under the assumption that these plat­ tools to verify whether a disclosure obligation has been triggered under
forms can identify which consumers have made a purchase through their Article 32(2) DSA. Unlike individual notifications under Article 32(1)
services and have their contact details to issue the required notifications. DSA, which can (in principle) be audited through transaction records,
For formal social marketplaces, this assumption holds true: the entire public disclosures leave no clear trace if omitted – particularly on
transactional process, including payment processing, is managed by the informal social marketplaces that do not process payments and there­
platform, which thereby retains the necessary data to trace individual fore, have no legally collected evidence of completed transactions.
purchasers. However, this level of data access is not guaranteed for Additionally, the DSA does not specify how long these disclosures must
informal social marketplaces. As previously discussed (see Section 2.2.2 remain visible and accessible on platform interfaces, which further
above), a defining feature of informal social marketplaces is that they do complicates compliance over time. These gaps may limit enforcement
not handle payments directly. Instead, they redirect consumers via their and leave consumers unaware of their exposure to illegal products or
in-app browsers to the third-party seller’s website, where the checkout services on social marketplaces, weakening the very transparency and
process occurs. Once consumers are redirected on these external web­ redress mechanisms that Article 32(2) DSA is meant to provide.
sites, informal social marketplaces have in principle no visibility over
whether a transaction was completed, nor do they have the information 4. Shortcomings in the DSA’s approach to consumer protection
needed to contact the consumer involved. For the purposes of Article 32 in social media commerce
(1) DSA, this suggests that informal social marketplaces cannot deter­
mine which consumers have purchased an illegal good or product In this paper, I analysed how the DSA protects consumers engaging in
through their services, and therefore cannot notify them accordingly. commercial transactions on social marketplaces. While the legal
However, reality is different as shown by multiple studies conducted framework applicable traditional online marketplaces is well estab­
by Felix Krause. His research revealed that social media platforms can lished, the same clarity does not extend to social commerce: a new form
track activities on external websites hosted on their in-app browsers, of online shopping occurring on platforms whose business models
without obtaining consent from users or website providers [35]. For initially relied on social networking. The analysis highlighted that the
instance, TikTok can record every tap on the screen and keyboard input DSA imposes obligations on social marketplaces that are directly rele­
when users interact with the trader’s website, including sensitive data vant to consumer protection. These obligations are set out in Section 4
such as passwords or credit card information [68]. While this indicates DSA, which applies to ‘online platforms allowing consumers to conclude
that informal social marketplaces have the technical capacity to detect distance contracts with traders’. And as previously argued (see Section
when a transaction occurs between a trader and a consumer, it remains 3.1 above), social media platforms with e-commerce features, what I
uncertain whether data collected through their in-app browsers should refer to as social marketplaces, fall into this category of online platforms
be used to comply with Article 32(1) DSA. Using such information would and must therefore comply with these obligations.
raise significant privacy concerns and could expose social media com­ However, integrating these DSA obligations into the broader EU
panies to scrutiny from data protection authorities. Interestingly, social consumer law framework raises important questions of legal coherence.
marketplaces publicly present their in-app browsers in far more neutral In the previous section, I examined how the provisions laid down in
or even protective terms. According to Meta, its in-app browser enables Section 4 DSA interact with existing legal instruments of the EU con­
“a safe, convenient, and reliable experience for people and businesses”, sumer acquis, such as the CRD and UCPD, in the context of social media
while detecting “attacks from bad actors, like when a scammer tried to commerce. Building on that analysis, I identify three shortcomings in the
redirect your customer to a malicious site” [22]. Meanwhile, TikTok has DSA’s approach to tackle social commerce from a consumer protection
admitted to monitoring user interactions, such as key presses and click perspective. These concern not only the adequacy and clarity of the
events, on third-party websites accessed through its in-app browser. obligations introduced by the DSA itself, but also the challenges of
However, it claimed that this data was used only “for debugging, trou­ interpreting and applying them consistently alongside pre-existing
bleshooting and performance monitoring of [user] experience, like checking consumer protection rules.
how quickly a page loads or whether it crashes” [69]. This explanation did
not convince all users, leading some to file lawsuits in the United States 4.1. Regulatory complexity
against TikTok for illegal tracking of user behavior [70]. Given these
privacy concerns and ongoing legal scrutiny, it is unlikely that informal The first shortcoming concerns the regulatory complexity of the
social marketplaces will rely on data collected through their in-app consumer protection landscape applicable to social media commerce,
browser to comply with Article 32(1) DSA. resulting from the interplay between the DSA and the EU consumer
As a result, they would automatically fall under the scope of Article acquis. As previously discussed (see Section 3.2 above), the obligations
32(2) DSA. This provision applies when platforms do not have the laid down in Section 4 DSA apply in conjunction with existing consumer
contact details of consumers who purchased an illegal product or service rules, which also impose duties on online intermediaries such as social
through their services. In such cases, social marketplaces must make marketplaces. Article 2(4)(f) DSA affirms that the DSA is ‘without
publicly and easily accessible on their interfaces the information prejudice’ to other Union legal acts, and is therefore meant to leave
mentioned in Article 32(1) DSA. From a consumer protection perspec­ consumer protection laws unaffected and consistent with them [49].
tive, this type of public disclosure serves an important function: they can However, the interaction between these frameworks reveals a different
empower consumers to make better-informed choices and encourage picture – one marked by regulatory complexity. For instance, the anal­
online platforms to screen traders more carefully. Yet the impact of ysis in Section 3.2.2 identified one point of tension between Article 31
Article 32(2) DSA on consumer protection may be limited for two rea­ (2) DSA, which sets the information that platforms must at least make
sons. First, these public disclosures directly conflict with the commercial technically possible for traders to provide through their interface, and
interests of social media companies, as they risk damaging the reputa­ Article 8(4) CRD, which specifies the minimum information that traders
tion of the platform and decrease user engagement. Frequent disclosures must disclose to consumers. In this scenario, the obligations under the
about illegal products may erode consumer trust in social marketplaces, CRD could be considered lex specialis and hence, override the provisions
discouraging further transactions, while simultaneously deterring ad­ of the DSA [73].
vertisers and traders to post their offers due to brand safety concerns Even when legal texts are not in formal contradiction, regulatory
[71]. In competitive digital markets where user attention [64] and complexity remains a concern. Contextualising the newly introduced
public perception are paramount [72], the reputational costs attached to obligations of the DSA with existing consumer protection laws proves to
public disclosures can therefore create disincentives for social be a challenging legal exercise. A key example of this complexity is the

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interplay between Article 30 DSA, which requires online marketplaces First, this lack of enforcement can be attributed to the limited and
to collect information from traders, and Articles 6a(1)(b) CRD and 7(4) uneven roll-out of e-commerce features on social media platforms [4].
(f) UCPD, according to which these platforms must inform consumers Until recently, only informal social marketplaces were available in the
about the legal status of traders (see Section 3.2.1 above). Looking EU (see Section 2.2.2 above), making commercial activity less visible to
ahead, the complexity of the regulatory framework applicable to social authorities and less likely to prompt enforcement actions. Second,
media commerce might increase. According to the study supporting the applying existing legal frameworks to social media commerce is not
Digital Fairness Fitness Check, the European Commission should straightforward. The provisions in Section 4 DSA, together with the EU
consider adopting consumer protection rules specifically tailored to consumer acquis, were not designed to regulate online platforms where
social commerce [26]. This recommendation is based on the concern social interaction and commercial activity coexist in fluid ways (i.e.
that the absence of clear rules weakens both the application and social marketplaces) [26]. As a result, enforcement is hindered not by
enforcement of consumer protection on social marketplaces, as dis­ the absence of rules, but by the challenge of understanding how they
cussed in the following sub-sections [26]. apply to evolving platform dynamics – what I referred to in the previous
sub-section as interpretive ambiguity. A final obstacle to enforcement is
4.2. Interpretative ambiguity the unavailability of reliable data. Article 40(1)-(3) DSA grants Digital
Services Coordinators and the European Commission access to data from
The second shortcoming relates to the difficulty of interpreting and VLOPs to monitor compliance. However, this provision might fall short
applying the DSA provisions to industries and practices they were not in the context of social commerce, particularly for informal social
envisaged for at the time of drafting, namely social marketplaces. The marketplaces that do not process payments. As transactions occur
obligations laid down in Section 4 DSA, along with those contained in off-platform, there may be no lawfully collected data to confirm that a
the CRD and UCPD, were drafted for traditional e-commerce platforms purchase occurred through their services. Without such data, moni­
(e.g. eBay, Amazon), where consumer transactions are clearly delin­ toring the obligations set out in Section 4 DSA, such as Article 32 DSA on
eated and actors easily identifiable. This clarity does not extend to social the right to information (see Section 3.2.3 above), becomes nearly
marketplaces, which are dynamic user-generated ecosystems that blur impossible.
the lines between social interaction and commercial activity. The fact One should also note that, since the adoption of the DSA, enforce­
that the DSA was not designed with such hybrid environments in mind is ment responsibilities related to consumer protection on online platforms
evident from Recital 13 DSA, which treats ‘social networks’ and ‘online – including social marketplaces – are shared across a broader network of
platforms allowing consumers to conclude distance contracts’ as two actors (e.g. European Commission, Digital Services Coordinators). This
distinct categories of online platforms (see Section 3.2 above). Yet, in marks a significant shift from traditional EU consumer law, where
practice, an increasing number of social media platforms serve both enforcement has primarily rested within national courts and adminis­
functions simultaneously. By the time the DSA was adopted, platforms trative bodies [4]. Coordination will therefore be critical to ensuring
like Instagram, TikTok, and Pinterest had already introduced e-com­ legal coherence, in particular when the DSA intersects with existing
merce features into their services. Failing to account for this conver­ instruments such as the CRD and UCPD [75].
gence is a missed opportunity to address the realities of digital markets
as they currently operate [26]. 5. Conclusion
Consequently, it becomes challenging to determine how Section 4
DSA and related consumer protection obligations apply to social mar­ This article examined how the DSA protects consumers in relation to
ketplaces. For instance, should a ‘Shop Now’ button beneath a TikTok social commerce, and what specific obligations it imposes on, what I
video trigger the same compliance-by-design obligations under Article call, social marketplaces (i.e. social media platforms with e-commerce
31 DSA as a traditional product listing on Amazon? Is the requirement to features) to increase transparency in online transactions. First, I shed
inform consumers about the identity of traders under Article 30 DSA, in light on the concept of social media commerce, defined in this article as
conjunction with Articles 6a(1)(b) CRD and 7(4)(f) UCPD, satisfied if the direct selling of goods and services through social media platforms. I
that information is only accessible via the seller’s profile? Similarly, then described how, at the time of the writing, social media platforms
what obligations arise when purchases are made through an in-app engage in e-commerce in the EU, distinguishing between formal and
browser that redirects consumers to an external website? Without pre­ informal social marketplaces. Building on this foundation, I analysed
cise interpretative guidance (rather than new legislation, given the how the DSA, and more specifically Section 4 DSA, applies to these
existing regulatory complexity described above), and targeted enforce­ emerging practices, and explored its interplay with EU consumer laws,
ment strategies adapted to the distinctive features of social commerce such as the CRD and UCPD.
(see Section 4.3 below), the current legal framework risks falling short of The analysis revealed three shortcomings in the DSA’s approach to
delivering effective and meaningful consumer protection. tackle social media commerce from a consumer protection perspective.
First, it introduces regulatory complexity, by layering new obligations
4.3. Enforcement gap applicable to social marketplaces onto existing consumer laws – an issue
that is likely to increase in light of the study supporting the Digital
The third shortcoming relates to the challenge of enforcing the DSA Fairness Fitness Check, suggesting the European Commission to adopt
in the context of social media commerce. While Section 4 DSA does rules specifically applicable to social commerce [26]. Second, the DSA
introduce new obligations designed to increase platform transparency suffers from interpretative ambiguity, as the provisions laid down in
and consumer protection, these obligations have not yet been enforced Section 4 DSA were not designed having social marketplaces in mind.
in relation to social marketplaces. This observation is based on the Third, enforcement actions targeting social media commerce are still
current lack of public evidence showing meaningful enforcement of lacking, due to the complexity this phenomenon and the involvement of
Section 4 DSA in the context of social media commerce. To date, a broad network of enforcement actors.
enforcement efforts under the DSA have been largely directed at tradi­ While the DSA holds promise, its effectiveness will ultimately depend
tional e-commerce platforms, where consumer protection issues (e.g. on how national authorities and the European Commission apply its
misleading information, deceptive product labels, sale of illegal prod­ provisions to social marketplaces – platforms that were not the initial
ucts) continue to surface [74]. Although the precise reasons for this focus of the Regulation. Rather than introducing new rules, the priority
enforcement gap are difficult to determine, a number of structural and should be to clarify the legal interaction between legal instruments, to
institutional barriers may help explain why social marketplaces have so interpret existing provisions in light of new platform practices, and to
far escaped regulatory scrutiny. ensure coordinated enforcement across relevant actors in order to

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