The EU Legal Framework Governing the Relationship Between an Instagram User and Instagram — and Remedies in Case of a Ban

Instagram is not merely an “app” you use; in EU legal terms it is an online platform (and, in the EU, it has been designated a Very Large Online Platform (VLOP) under the Digital Services Act). Union Européenne+2Union Européenne+2

That classification has a direct consequence: when Instagram restricts content, disables features, suspends, or bans an account, the decision is no longer governed only by private Terms of Use. It is also framed by mandatory EU rules on transparency, due process, complaint-handling, and redress. EUR-Lex+2Stratégie numérique de l'UE+2

This article answers four concrete questions that arise in almost every “banned account” file:

1. What is the legal nature of the relationship between a user and Instagram?

2. Which EU rules govern moderation decisions (content removal, shadow bans, account restrictions, suspension/termination)?

3. What additional rights exist for “business users” (creators who monetize, brands, e-commerce, advertisers)?

4. What remedies are realistically available, including in France, when a ban appears wrongful or disproportionate?

PART I — The Legal Relationship: Contract + EU Mandatory “Platform Due Process”

A. The legal nature of the Instagram user relationship (contract, status, jurisdiction, and applicable law)

1) A contract of digital service, typically on standard terms, supplemented by mandatory EU rules

At its base, the user–Instagram relationship is contractual: the user accepts Instagram’s Terms of Use and commits to comply with platform rules (community guidelines, intellectual property policies, integrity/spam rules, etc.). Instagram’s terms also contain dispute clauses and operational rules for moderation, including the possibility to remove content or restrict/terminate accounts. Centre d'aide Instagram

However, EU law constrains how far standard terms can go. The contract is not “sovereign”: it sits inside a framework of mandatory EU norms (consumer law, data protection, and—most importantly for bans—the Digital Services Act). EUR-Lex+2EUR-Lex+2

2) Consumer or professional? The classification changes the toolbox

EU law tends to separate two large categories of users:

• Consumers (B2C): natural persons acting outside their trade/profession. They benefit from consumer-protection rules on unfair terms and unfair commercial practices. EUR-Lex+1

• Business users (B2B / platform-to-business): companies, self-employed professionals, or creators using the platform to market goods/services, monetize content, or generate leads. They can benefit from the Platform-to-Business Regulation (P2B), which requires transparency, statements of reasons for restrictions, and internal complaint handling and mediation mechanisms. EUR-Lex+1

Many Instagram files involve “hybrid” situations: a person is a consumer in private life but uses Instagram as a business channel. A correct legal strategy identifies which status is dominant for the disputed account (and whether there are multiple accounts with different purposes).

3) Applicable law and jurisdiction: why EU conflict-of-laws rules matter in ban litigation

When litigation is considered, the immediate question becomes: “Can I sue in France, under French mandatory rules, even if the platform’s terms refer to another law or forum?” The answer often depends on the user’s status and on EU conflict-of-laws rules.

• Rome I Regulation governs the law applicable to contractual obligations and contains protective rules for consumers (so that certain mandatory protections of the consumer’s country of habitual residence cannot be contractually waived in many situations). EUR-Lex+1

• Brussels I Recast (Regulation 1215/2012) governs jurisdiction, including special protective jurisdiction rules for consumers (frequently enabling suit in the consumer’s home Member State against a company established in another Member State). EUR-Lex+1

This matters in practice because Instagram’s EU-facing entity is typically located in Ireland (Meta Platforms Ireland Limited is commonly referenced as the service provider for EU users). Facebook

A French-based user often retains meaningful procedural options in France, particularly where consumer jurisdiction rules apply. The analysis is technical, but it is not academic: it determines whether emergency relief (injunction) can be sought quickly in French courts.

4) French law as “supporting law”: contract law, unfair terms, and emergency proceedings

When the dispute is litigated in France (or when French rules are invoked as mandatory protections), several French-law layers typically appear:

• General contract law (Civil Code principles on binding force of contracts and good faith performance) is routinely argued when a ban appears arbitrary, disproportionate, or unreasoned.

• Consumer unfair terms can be invoked when a clause creates a significant imbalance in a consumer contract (the EU Unfair Terms Directive is the backbone). EUR-Lex

• LCEN (Law 2004-575) historically governed hosting-provider obligations and judicial powers to order measures to prevent or stop harm. Even though the DSA is now the central EU instrument, LCEN still appears in French litigation reasoning and interim measures practice (and its logic remains relevant as national procedural scaffolding). Légifrance+1

The pragmatic takeaway: your ban file is not “only contractual”. It is usually a mixed file: contract + EU platform regulation + data protection + (depending on status) consumer/business protections + national procedural law.

B. The EU “platform governance” rules that directly frame bans: DSA, P2B, GDPR, and consumer law

1) The Digital Services Act (DSA): the core due process regime for account restrictions and bansThe DSA (Regulation 2022/2065) is the primary EU instrument governing content moderation systems and redress mechanisms. EUR-Lex+1

For an Instagram ban file, four DSA pillars are decisive:

(i) “Statement of reasons” for restrictions (Article 17 DSA)

When a platform restricts content, visibility, monetization, or access (including suspension/termination) on the ground of illegality or incompatibility with its terms, it must provide a clear and specific statement of reasons to the affected recipient. eu-digital-services-act.com+1

In practice, this is the legal basis to challenge vague notices such as “you violated our rules” without identifying the content, the rule, the factual basis, and the redress options.

(ii) Internal complaint-handling (Article 20 DSA)

Online platforms must provide an internal complaint-handling system enabling users to contest certain moderation decisions in a timely and non-arbitrary manner. Cms Digital Laws+1This is not merely a “support ticket”; it is an EU-mandated channel that must work under minimum standards.

(iii) Out-of-court dispute settlement (Article 21 DSA)

Users can submit disputes to certified out-of-court dispute settlement bodies. Article 21 frames the procedure and timelines (with a general expectation of a decision within 90 days, extendable in complex cases). Stratégie numérique de l'UE+2eu-digital-services-act.com+2

(iv) VLOP status: additional systemic obligations and closer supervision

Instagram has been designated a VLOP, which triggers enhanced obligations (risk assessment, mitigation, audits, transparency), and places it under closer regulatory supervision at EU level. Union Européenne+2Stratégie numérique de l'UE+2

From a litigation perspective, the VLOP context is useful in two ways: it reinforces the expectation that moderation systems be robust and non-arbitrary, and it provides a regulatory “backdrop” when arguing urgency, systemic failure, or repeated lack of due process.

2) Platform-to-Business (P2B) Regulation: crucial when the account is used commercially

The P2B Regulation (EU) 2019/1150 applies to online intermediation services vis-à-vis business users and imposes fairness and transparency obligations. EUR-Lex+1For bans and restrictions, the operationally relevant P2B ideas are:

• the platform must provide a statement of reasons for restriction, suspension, or termination of services to a business user (with specific requirements and timing exceptions in certain circumstances); Orrick+1

• the platform must have an internal complaint-handling system for business users; Orrick+1

• the platform must indicate mediators with whom it is willing to engage, encouraging settlement. Noerr+1

In practice, P2B is particularly effective for: brands, e-commerce operators, agencies, professional creators, and any user whose Instagram presence is demonstrably tied to revenue, customer acquisition, or professional activity.

3) GDPR: data rights that can unlock evidence and challenge automated enforcement

A ban is often “opaque” because the user does not know which content or signals triggered enforcement. GDPR can be a strategic instrument to obtain clarity, because the user has rights of access and information, and because automated decision-making is regulated.

• Article 22 GDPR gives individuals the right not to be subject to decisions based solely on automated processing that produce legal or similarly significant effects, with specified exceptions and safeguards (including the right to obtain human intervention, express a point of view, and contest the decision in the relevant configurations). RGPD+2EUR-Lex+2

In practice, not every moderation decision will qualify as “solely automated” with “legal or similarly significant effects” under Article 22, but many professional creators can credibly argue significant effect (loss of business channel, reputational impact, monetization loss), especially if the platform provides no meaningful human review.

GDPR therefore serves two functions in a ban file: (a) it can support a demand for a meaningful review and explanation when automation is involved, and (b) it can support evidence gathering about the processing behind the decision.

4) EU consumer law: unfair terms and misleading practices as supporting arguments

If the user is a consumer, two EU pillars often help in ban disputes:

• Unfair Terms Directive 93/13/EEC: if contractual clauses allow termination or restriction on extremely broad grounds, with no transparency, no proportionality, and no effective remedy, they may be challenged as unfair depending on the context and national transposition/application. EUR-Lex+1

• Unfair Commercial Practices Directive 2005/29/EC: where the platform’s public communication, interface design, or support process could be characterised as misleading or aggressive in a consumer context, this directive can appear in broader strategies (though it is less central than DSA/P2B for pure ban litigation). EUR-Lex+1

In short: DSA is the ban “constitution”; P2B is a powerful commercial lever; GDPR is the evidence and automation lever; consumer law is a supporting fairness framework.

PART II — Ban Scenarios and Remedies: From Internal Appeal to Injunction and Liability

A. How bans happen in practice, and how to build an effective legal challenge (without wasting steps)

A ban case is won or lost on structure and evidence. The mistake is to argue abstract principles (“freedom of expression”, “unfair”) without first forcing the platform to specify the decision and the factual basis as required by EU law.

1) Identify the type of restriction, because the legal hooks differ

Instagram enforcement actions vary, and each triggers slightly different arguments:

• content removal or visibility limitation;

• feature restrictions (live, commenting, ads, monetization);

• temporary suspension;

• permanent disablement/termination;

• “integrity” restrictions (spam, fake engagement, impersonation);

• linked-account enforcement (Facebook/Meta account centre) with cascading effects.

Under Article 17 DSA, many of these are “restrictions” requiring a statement of reasons when they are grounded on illegality or incompatibility with terms. eu-digital-services-act.com+1

2) Demand a compliant statement of reasons (DSA) and a compliant statement of reasons (P2B if business user)

In practice, the first serious legal letter usually does three things:

• it requests the Article 17 DSA statement of reasons with sufficient specificity (rule violated, content identified, dates, enforcement category, reasoning, and available redress mechanisms); eu-digital-services-act.com+1

• if the user is a business user, it invokes P2B’s requirement for a statement of reasons and the internal complaints channel; Orrick+1

• it preserves evidence: screenshots of the enforcement notice, account status screens, emails, and logs of appeals filed.

This step is not optional if you want an efficient escalation: it frames the dispute in a way that regulators, mediators, and judges can understand quickly.

3) Use the internal complaint-handling system strategically, not passively

Under Article 20 DSA, the internal complaints mechanism must operate in a timely, diligent, and non-arbitrary way. Cms Digital Laws+1A high-quality submission is not a “please reconsider” message. It is a structured narrative in plain language that:

• identifies the decision precisely (date/time, type of restriction);

• contests the factual basis (e.g., no impersonation, no spam, no IP infringement; or lawful use/fair use arguments where relevant);

• requests the exact relief (reinstatement; specific content restoration; or at minimum a human review and a detailed explanation);

• points to disproportionality (e.g., warning would suffice; content removal rather than account termination).

4) GDPR as evidence strategy: when you need the underlying signals

Where a ban is based on “spam/scam”, “inauthentic behavior”, “policy circumvention”, or alleged automated signals, you frequently need to know what Instagram is relying on. GDPR can be used to demand access and information about the processing (within the boundaries of platform confidentiality, trade secrets, and third-party rights), and to challenge purely automated enforcement when the effect is significant. RGPD+2European Commission+2

This is particularly relevant where: (i) the user’s livelihood depends on the account, (ii) the platform refuses to identify any specific content, or (iii) there is reason to suspect false positives (e.g., hacked account activity, bot-like login anomalies, mass reporting campaigns).

5) Document urgency and harm properly (especially for interim relief)

Courts do not grant emergency relief on sentiment; they grant it on demonstrable urgency and plausible unlawfulness. In practice, the file must quantify and evidence:

• loss of access to audience/community;

• contractual campaigns lost;

• monetization metrics (brand deals, affiliate sales, lead funnels);

• reputational harm (public-facing “account disabled” screens);

• time sensitivity (launch, seasonal campaigns, elections, events).

Even when the legal basis is strong, the practical file fails if urgency is not proven.

B. Remedies and escalation paths in the EU and in France: internal appeal, out-of-court settlement, regulator channels, and court action (including insolvency scenarios)

This section addresses the core question: “What can I actually do if Instagram bans me?”

1) EU statutory remedies under the DSA: internal complaints and certified out-of-court dispute settlement

The DSA provides a two-step redress architecture that is meant to function even for ordinary users:

• Article 20 DSA internal complaint-handling (you appeal within the platform); Cms Digital Laws+1

• Article 21 DSA out-of-court dispute settlement through certified bodies, with procedural expectations and timeframes. Stratégie numérique de l'UE+2eu-digital-services-act.com+2

The European Commission’s guidance pages confirm that DSA redress applies to moderation decisions restricting accounts or access to the service, not only to single content items. Stratégie numérique de l'UE

In practice, out-of-court settlement is especially useful when: (i) you need a neutral review without immediately litigating, (ii) you want a documented independent decision, or (iii) the platform’s internal channel appears dysfunctional.

2) Business-user remedies under P2B: internal complaints and mediation leverage

If the account is tied to a business, P2B adds additional leverage: statement of reasons requirements, internal complaint systems, and mediation references in terms. EUR-Lex+2Noerr+2P2B is often an effective “pressure tool” because it frames the dispute around economic dependence and fairness in platform intermediation.

3) Regulatory avenues: VLOP supervision context (and what it changes)

Instagram’s designation as a VLOP under the DSA is confirmed in EU Commission communications. Union Européenne+2Union Européenne+2This does not mean “the Commission reinstates accounts” on demand. But VLOP status changes the environment:

• platforms are subject to heightened scrutiny;

• systemic issues in moderation and redress are within regulatory focus;

• documented failures (no reasons, no effective appeals, arbitrary outcomes) can be framed as part of a broader compliance issue.

For strategic files (high-visibility accounts, repeated enforcement without reasons, mass erroneous bans), the regulatory framing can be valuable—even when the immediate remedy pursued remains an injunction or negotiated reinstatement.

4) Judicial remedies in France: emergency injunctions, liability, and evidence orders

Where the economic harm is acute, or where the platform’s DSA/P2B duties are clearly ignored, judicial action becomes realistic. French law is often used in two pragmatic ways:

(i) Emergency relief to restore access (interim injunction)

French procedure allows urgent measures where there is urgency and a plausible basis (the exact procedural hook depends on the situation and forum). In practice, counsel frequently seeks an order compelling the platform to: restore access pending review, provide compliant reasons, or refrain from irreversible harm. LCEN is sometimes cited for the court’s power to order measures to prevent or stop harm involving online hosting, alongside the broader procedural framework. Légifrance+1

The strongest emergency cases are those with: (a) clear non-compliance with Article 17 DSA (no reasons), (b) clear non-compliance with Article 20 DSA (no genuine review), and (c) demonstrated, immediate professional harm.

(ii) Substantive claims: contractual liability and unfairness arguments

If interim relief is not granted or if the harm has already materialized, claims can target:

• wrongful termination / abusive enforcement under general contract principles (good faith performance, proportionality reasoning);

• unfair terms arguments (consumer context) grounded in Directive 93/13; EUR-Lex+1

• failure to comply with EU statutory duties (DSA/P2B), which can support fault analysis and court-ordered performance.

(iii) Evidence and transparency: forcing the platform to “show its cards”

A recurring challenge is evidentiary asymmetry: the platform holds logs, signals, and decision records. GDPR can help, but litigation may be necessary to obtain court-driven transparency—particularly when automation or alleged security events are invoked.

5) What if there is “bankruptcy” or “failure” on the platform side?

For Instagram specifically, a classic insolvency scenario is not the usual risk; the more realistic “failure” is operational: account disabled, support inaccessible, or ineffective due process.

Still, the legal reasoning remains useful: you are enforcing rights against a corporate entity, and remedies include:

• performance (restoration),

• declaratory relief (wrongfulness),

• damages (loss of chance, business loss),

• and, in appropriate cases, orders to provide information.

If the platform were ever in a true insolvency procedure, claims would be handled through insolvency rules of the relevant jurisdiction, but for most ban files this is theoretical. The practical “crisis law” is not insolvency; it is emergency civil procedure, evidence strategy, and EU redress.

Practical conclusion: a workable escalation sequence (EU-compliant and litigation-ready)

A ban file should typically be built in this order:

1. secure evidence and identify the exact restriction;

2. demand a compliant statement of reasons (DSA Art 17; plus P2B if business user); eu-digital-services-act.com+1

3. lodge a structured internal complaint (DSA Art 20); Cms Digital Laws+1

4. if unresolved, consider out-of-court dispute settlement (DSA Art 21) and/or mediation routes for business users (P2B); eu-digital-services-act.com+1

5. if urgency and harm are established, prepare interim judicial relief (France often being a viable forum for French-based users depending on status and jurisdiction rules); EUR-Lex+1

6. use GDPR strategically when automation and opacity prevent meaningful contradiction. RGPD+2European Commission+2