Chapter 4|Supervision, Investigation, Enforcement and Monitoring of VLOPs and VLOSEs|📖 8 min read
1. In order to carry out the tasks assigned to it under this Section, the Commission may interview any natural or legal person who consents to be interviewed for the purpose of gathering information relating to the subject matter of an investigation. The Commission shall have the power to record such interview by appropriate technical means.
2. Where an interview referred to in paragraph 1 is carried out outside the premises of the Commission, the Commission shall inform the Digital Services Coordinator of the Member State in whose territory the interview takes place. Officials of that Digital Services Coordinator may assist officials of the Commission in the interview or may participate in it upon their request.
Understanding This Article
Article 68 grants Commission authority to conduct interviews as supplementary investigatory tool complementing Article 67 written information requests and Article 69 on-site inspections. Addresses investigatory need for testimonial evidence: while documents provide factual records, interviews enable Commission to gather contextual explanations, expert interpretations, witness observations, contradictory accounts, and qualitative insights that written materials cannot fully capture. Platform compliance investigations often require understanding human decision-making processes, organizational cultures, informal practices, and subjective experiences—VLOP content moderator describing actual workflow vs. official policy documentation, algorithm developer explaining design choices, researcher recounting data access request frustrations, user describing harmful recommendation experiences. Interviews generate evidence illuminating implementation gaps between formal compliance frameworks and operational realities. Critical distinction from Article 67: interviews are voluntary requiring subject's consent, respecting fundamental rights against self-incrimination and protecting testimonial autonomy, while Article 67 can compel written information through binding decisions and penalties. Voluntary nature encourages candid cooperation: willing interviewees more likely to provide forthcoming testimony than compelled witnesses, Commission builds cooperative relationships with stakeholders beyond adversarial enforcement.
Interview Authority and Recording - Paragraph 1: Commission may interview 'any natural or legal person who consents'—no restrictions on interviewee categories, can include: VLOP/VLOSE employees (content moderators, algorithm engineers, compliance officers, executives, former employees), contractors and service providers (third-party moderators, cloud hosting providers, ad tech vendors), users and user representatives (individuals, consumer organizations, civil society groups), researchers and academics (platform studies scholars, data access requesters), competitors (rival platforms observing VLOP practices), experts (technical specialists, legal advisors, industry consultants), DSC officials (national enforcement experiences and observations). Interviews serve 'purpose of gathering information relating to subject matter of investigation'—must connect to Articles 65-66 proceedings, cannot conduct fishing expeditions or interviews unrelated to suspected violations. Consent requirement: interviewees must agree voluntarily, can decline or terminate interview, can impose conditions (limited topics, lawyer presence, confidentiality requests), cannot be penalized for refusal (unlike Article 67 information requests with Article 74/76 penalties). Recording power: Commission can record interviews 'by appropriate technical means'—audio recording, video recording, transcription, stenography. Recording requires consent as part of interview agreement: interviewees consenting to interview understand recording will occur, can condition consent on recording method or prohibition. Recordings serve as evidence: used in Article 73 non-compliance decisions, Article 74 fine determinations, challenged at Court of Justice requiring accuracy and reliability. Recording prevents interview disputes—no conflicting recollections or testimonial denial, provides verbatim record, enables review by Board, DSCs, and provider during Article 79 rights of defense.
DSC Cooperation - Paragraph 2: When Commission conducts interviews outside Brussels (in Member State territories), must inform relevant DSC—territorial courtesy and cooperation principle. DSC officials have two participation options: (a) assist Commission in interview—DSC provides logistical support (arranging location, coordinating scheduling, facilitating interpreter if needed, offering local regulatory context), or (b) participate in interview upon their request—DSC officials actively join interview asking questions, following up on Commission inquiries, leveraging national expertise and knowledge of local market conditions. DSC participation benefits investigation: DSC officials may have established relationships with interviewees (particularly VLOP employees in establishment Member State or local users), DSC possesses national regulatory intelligence contextualizing testimony, DSC language and cultural expertise facilitates communication, DSC learns from Commission investigative techniques and substantive findings. Example: Commission interviewing Meta employees in Dublin (Irish DSC territory), Irish DSC officials participate contributing questions about Irish-specific compliance issues, leveraging familiarity with Meta's Irish operations, gaining insight into Commission's VLOP supervision approach. DSC assistance particularly valuable when interviews conducted in non-English languages or involve culturally specific contexts requiring local understanding.
Key Points
Commission may interview any natural or legal person for investigation purposes
Interviews require subject's consent (cannot be compelled)
Applies to gathering information related to investigation subject matter
Commission can record interviews by appropriate technical means
Recording requires consent as part of interview agreement
When interviews outside Commission premises, relevant DSC must be informed
DSC officials may assist Commission in conducting interview
DSC officials may participate in interview upon their request
Facilitates DSC-Commission cooperation in evidence gathering
Supplements Article 67 information requests with testimonial evidence
Enables contextual understanding beyond written documentation
Can target VLOP employees, contractors, users, researchers, experts, competitors
Voluntary nature respects fundamental rights and procedural protections
Provides flexible investigatory tool for qualitative insights
Recordings serve as evidence in enforcement proceedings
DSC involvement leverages national expertise and territorial proximity
Practical Application
Content Moderator Interviews - Meta Investigation: Commission investigating Meta's Article 14 content moderation and Article 16 notice-and-action adequacy conducts interviews with current and former Meta content moderators across Member States. Commission contacts moderators individually (identified through public reporting, whistleblower referrals, LinkedIn), requests voluntary participation, explains interview purpose (understanding operational content moderation implementation), obtains consent including audio recording. Interviews conducted via video conference and in-person at Member State locations. Sample questions: How do you apply Meta's community standards in practice? What guidance and training do you receive? How long do you typically spend reviewing each piece of content? How often do you disagree with algorithmic content flagging? What happens when you raise concerns about policy application? How does Meta measure your performance and productivity? Moderators describe: intense time pressure (seconds per review), inadequate training for nuanced decisions, conflicting guidance from supervisors, psychological harm from disturbing content exposure, algorithmic flag errors requiring manual override, quality assurance focused on speed over accuracy. Interview testimony reveals gaps between Meta's Article 14 compliance documentation (claiming robust training and support) and operational reality (inadequate resources and unrealistic performance expectations). Commission uses recorded interviews as evidence in Article 73 preliminary findings demonstrating Article 14 content moderation insufficiency. Irish DSC officials participate in Dublin moderator interviews, German DSC in Berlin interviews, leveraging territorial proximity and national labor law expertise.
Algorithm Developer Testimony - TikTok Recommendation Algorithm: Commission investigating TikTok Article 27 recommender transparency and Article 35 systemic risk mitigation interviews TikTok algorithm engineers (consenting employees or former employees). Questions include: What parameters determine content recommendation ranking? How are engagement signals weighted? What safeguards prevent misinformation amplification? How do you test algorithm changes? What metrics evaluate recommendation quality? How does TikTok balance engagement maximization with content safety? Engineers explain technical design decisions, acknowledge engagement optimization prioritization, describe challenges in detecting coordinated inauthentic behavior, reveal internal debates about safety vs. growth trade-offs. Testimony provides contextual understanding impossible from algorithm documentation alone—human judgment behind parameter choices, organizational pressures influencing design, implementation shortcuts taken under deadline pressure. Commission triangulates engineer interviews with Article 67 documentation requests and Article 69 code inspection: interviews provide narrative context, documents provide written evidence, inspection verifies implementation. Engineers' descriptions of algorithm testing inadequacy for electoral integrity risks supports Commission's Article 35 systemic risk assessment inadequacy finding.
Researcher Data Access Experiences - YouTube Article 40: Commission investigating YouTube Article 40 researcher data access compliance interviews academic researchers who requested access under Article 40. Researchers voluntarily participate (motivated by frustration with YouTube responses, desire for regulatory improvement). Interview topics: How did you submit your data access request? How long did YouTube take to respond? Was the response adequate? What data did you receive vs. what you requested? How did YouTube justify any limitations? Did you appeal? Researchers recount: multi-month delays despite Article 40's 'reasonable period' obligation, opaque rejection criteria ('proprietary concerns' without specificity), API functionality limitations preventing meaningful research, lack of appeal process transparency. Interviews corroborate written complaints establishing pattern of systematic Article 40 non-compliance. Commission uses researcher testimony in Article 73 preliminary findings, citing specific examples from interviews demonstrating YouTube's access provision inadequacy. Researchers' technical expertise also helps Commission formulate remedial requirements understanding what data access researchers genuinely need for Article 40's public interest research purpose.
User Harm Testimony - X Crisis Response: Commission investigating X's Article 36 crisis response protocol adequacy interviews users and civil society organizations affected by crisis (natural disaster, terrorist attack, public health emergency). Users describe: encountering misinformation spreading virally during crisis, attempting to report harmful content without adequate response, searching for authoritative information but finding conspiracy theories instead, experiencing anxiety from exposure to disturbing crisis-related content. Civil society organizations document: coordinating with X during crisis proving difficult, crisis protocol activation delayed or absent, content moderation quality deteriorated during crisis volume surge, public interest announcements insufficiently prominent. Interview testimony humanizes regulatory violations—not abstract compliance failures but real harm to real people. Commission incorporates user experiences in Article 73 decision explaining why Article 36 violations 'seriously affect recipients' justifying enforcement. Testimony also informs remedial measures: Commission understands from user accounts what effective crisis response requires, shapes compliance obligations addressing actual user needs not theoretical frameworks.
For Commission - Conducting Interviews: Identify interviewees strategically targeting individuals with relevant direct knowledge and experience. Contact potential interviewees respectfully explaining purpose, voluntary nature, and recording practices. Develop interview questions balancing open-ended exploration with focused investigation needs. Record interviews creating reliable evidence record while ensuring recording doesn't inhibit candor. Coordinate with DSCs when interviewing in Member State territories leveraging DSC participation and expertise. Protect interviewee confidentiality when appropriate preventing retaliation especially for employee whistleblowers. Triangulate interview testimony with documents and inspections corroborating or challenging interviewee accounts.
For Interviewees - Participating in Commission Interviews: Understand voluntary nature—can decline, impose conditions, or terminate interview. Consider lawyer presence if concerned about legal implications particularly for current VLOP employees. Provide truthful testimony—false statements may violate national laws and undermine credibility. Request confidentiality if fearing retaliation. Review recording and transcript if available correcting any misunderstandings. Recognize interview may influence enforcement benefiting public interest and regulatory effectiveness.
For VLOPs/VLOSEs - Managing Employee Interviews: Cannot prevent employees from voluntarily participating in Commission interviews (would violate fundamental rights and potentially obstruct justice). Provide internal guidance about employee rights and Commission cooperation. Avoid retaliating against interviewed employees (illegal under employment and whistleblower protection laws). Consider interviews as signals of Commission investigation areas meriting proactive compliance review. Recognize interview testimony may reveal implementation gaps between compliance documentation and operational reality requiring remediation.