Neither the EU nor, in many cases, its member states (or even a certain former member state across the English Channel) are known for their fondness for online free speech. Germany, after all, is the home of a social-media law that, in its initial incarnation, helped inspire Russia’s, while the Brits contemplated legislation that would have obliged social-media companies to devise policies to handle comments that were legal, but “harmful.” France passed a law empowering a judge to order the removal of “fake news” during an election campaign. And the list goes on and on.
After the Charlie Hebdo killings, politicians from across Europe marched through Paris, each claiming #JeSuisCharlie, a gesture that would have been praiseworthy had they meant it. That was not the impression that they had given beforehand, and it is not the impression that they have given since.
[A]ll those hashtags, #JeSuisCharlie and all the rest? Nothing more than suitably postmodern crosses in the cemetery where free speech lies buried.
Those running the EU have now imposed a new censorship mechanism (via its new Digital Services Act), on top of that already being imposed at the national level. Some of the rules are sensible, but others are capable of abuse, in part because of their chilling effect: The maximum fine for breach of the act could be as much as six percent of the previous year’s annual turnover, a sum designed to ensure that those subject to the law err on the side of caution, as is the provision that repeated serious breaches of the law could lead to a ban.
Just in case that’s not enough to do the trick, the Digital Services Act (DSA) also opens up the possibility of civil litigation by aggrieved parties, raising the prospect both of damages and endless lawfare. The DSA applies to all online intermediaries wherever they are located, if they are offering their services within the EU. That will include Twitter. The EU Commission (the EU’s bureaucratic arm) will be the primary regulator for “very large online platforms” (meaning those reaching 45 million users or more), which, in this respect, will have powers similar to those enjoyed by the EU’s antitrust enforcers, another incentive to err on the side of the caution.
Material that is harmful, but not illegal, should not, the EU Commission claims, “be treated in the same way as illegal content.”
But:
At the same time, the DSA regulates very large online platforms’ and very large online search engines responsibilities when it comes to systemic issues such as disinformation, hoaxes and manipulation during pandemics, harms to vulnerable groups and other emerging societal harms. Following their designation by the Commission as very large online platforms and very large online search engines that reach 45 million users will have to perform an annual risk assessment and take corresponding risk mitigation measures stemming from the design and use of their service. Any such measures will need to be carefully balanced against restrictions of freedom of expression.
“Carefully balanced.”
As the Financial Times reports, Elon Musk has spoken to Thierry Breton, the EU commissioner in charge of implementing the DSA.
The FT:
Breton told Musk that Twitter must adhere to a checklist of rules, including ditching an “arbitrary” approach to reinstating banned users, pursuing disinformation “aggressively” and agreeing to an “extensive independent audit” of the platform by next year.
Musk was warned that unless he stuck to those rules Twitter risked infringing the EU’s new Digital Services Act. . . . Twitter’s owner said repeatedly that he thought that the DSA was “very sensible”, said people briefed on the conversation, adding that he had read the legislation and thought it should be applied everywhere in the world. Musk has previously said Twitter would adhere to all relevant laws.
An extensive independent audit.
Useful word, independent.
What could go wrong?
Musk’s comments about the merits of the DSA? Sometimes you say what you have to say.
Best guess is that what lies ahead for Twitter will be an attempt by the EU to force the company to maintain an ideologically “acceptable” content-moderation policy. To this end, Brussels will likely use various lines of attack, including sustained bureaucratic harassment, to wear Musk down.
The BBC reported these comments by Breton after his conversation with Musk:
“Let’s also be clear that there is still huge work ahead, as Twitter will have to implement transparent user policies, significantly reinforce content moderation and protect freedom of speech, tackle disinformation with resolve, and limit targeted advertising…All of this requires sufficient AI (Artificial Intelligence) and human resources, both in volumes and skills. I look forward to progress in all these areas and we will come to assess Twitter’s readiness on site.”
The EU plans to conduct a “stress test” in 2023 ahead of a wider audit, [Breton’s] office said.
Brussels’s censors are on the march.