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Article 38 · Regulation (EU) 2022/2065

Recommender systems without profiling

At least one recommender option that is not based on profiling must be available.

Applies to
VLOPs and VLOSEs
Frequency
Continuous

Where a designated service uses recommender systems, it must provide at least one option for each of them that is not based on profiling within the meaning of the GDPR.

This sits on top of the baseline Article 27 duty for all online platforms to explain in their terms the main parameters of their recommenders and any options to modify them. Article 38 goes further: the non-profiling option must actually exist, and be directly and easily accessible from the interface where the recommendations are presented.

For a search engine the obligation reads as search results not based on profiling. For a feed-based platform it is the chronological or non-personalised alternative.

Worth knowing

  • The Commission’s January 2026 proceeding against X extends to its recommender systems, including a planned switch to a Grok-based recommender.
  • How Article 38 applies to a conversational assistant is one of the open questions raised by the ChatGPT designation.
  • A non-profiling option that is technically present but buried is a mitigation and design question under Articles 34–35 as well as an Article 38 one.