The EU Versus Free Speech

By John Gustavsson

Friday, August 30, 2024

 

On Saturday, Pavel Durov, the founder of the Telegram app, was arrested by French authorities. Durov, who has French citizenship, had refused to cooperate with French and EU authorities who had demanded access to his encrypted-messaging app. 

 

France is, as the saying goes, “throwing the kitchen sink” at Pavel Durov. I am not a legal scholar, and I am in no way qualified to say whether Durov is guilty of something. But the “crimes” French authorities are charging him with are dubious. Several of the charges concern “complicity,” including complicity in the distribution of child-sexual-abuse material. French authorities are not arguing that Durov is part of a pedophile ring, but rather that, since Telegram allows pedophiles to connect and share their vile material, this makes him legally complicit. It’s difficult to see how this would not apply to any social-media platform, or perhaps the post office. 

 

Other charges relate to the encryption itself, including “providing cryptology services aiming to ensure confidentiality without certified declaration.” The “cryptology services,” of course, are the Telegram app itself. 

 

Again, it is not for me to say whether Durov is guilty. But reading the indictment, it is hard to escape the conclusion that France is attempting to punish the owner of an app because he refused to moderate its content to the liking of French authorities. Telegram, in response to accusations, has argued it does moderate child-sexual-abuse material. What level of moderation is sufficient for an app’s founder to not be guilty of crimes committed by users on the app? The answer from French authorities appears to be “whatever level we say.” 

 

The impression that the prosecution is partially politically motivated becomes even stronger when considering the European Union’s recent crusade against social-media platforms and the speech permitted on them. 

 

Telegram is not the first to face the wrath of European bureaucrats. Since buying Twitter, Elon Musk has found himself locking horns with Brussels. 

 

At the center is the Digital Services Act (DSA), passed into law by the European Union in 2022, around the same time as Musk finalized his purchase of Twitter. Under the DSA, very large online platforms such as Twitter/X have a legal responsibility to prevent the spread of so-called disinformation. The DSA has been criticized for being vague, and for allowing policy-makers to define “disinformation,” something that could potentially be used to stifle political opposition. 

 

Last month, the European Commission formally charged Elon Musk with allowing his platform to be used to spread disinformation and illegal content. The charges against Twitter/X are the first under the DSA. Among other things, the EU argues that Musk allowing users to pay for blue checkmarks violates the DSA; their case is that, since the blue checkmarks are traditionally a sign of credibility, Musk cannot be allowed to sell them willy-nilly to just any user with $8. 

 

As if relations between Musk and Brussels were not bad enough, things came to a head earlier this month when Musk interviewed Donald Trump live on Twitter/X. Thierry Breton, a European Commissioner for France, published an open letter warning Musk of consequences if the interview went ahead, the reasoning being that Musk was allowing Trump to spread “misinformation” on the platform. True to form, Elon Musk did not care, and very brazenly responded with a meme. Humiliated, Breton was forced to backtrack.

 

Emmanuel Macron has assured everyone that the prosecution of Durov is not political, and that his country is committed to freedom of speech. However, Macron’s record on free speech is not reassuring: As late as last month, Macron suggested that authorities should have the right to completely block the use of social media during riots, a pastime that has become quite common during Macron’s reign. Pulling the plug on social media to stop protesters from organizing is a strategy previously utilized by countries such as Egypt and Syria during the Arab Spring.

 

The careful reader may note that most of these developments have happened during the past two months, or past few years. What triggered this? 

 

First, the culture around freedom of speech has never been as strong in Europe. As a continent, we have preferred homogeneity to thought-provoking innovation and discourse. The kind of grip on the press that is enjoyed by governing parties in many European countries goes far beyond the liberal bias of American media. The inability to gate-keep information and steer the political dialogue on social media is making many European policy-makers nervous. 

 

Second, while the rise of national conservative and populist parties is an over-a-decade-long-running story in Europe, mainstream European politicians genuinely believed a few years ago that they had finally put a stop to those parties’ momentum. Brexit proved to be far messier than the “sunlit uplands” promised by certain campaigners, causing many national conservatives around the continent to back away from demands that their countries similarly leave the EU. After the refugee crisis of 2015-16, migration volumes dropped for a few years, and things appeared to be stabilizing. Then, the pandemic, the war in Ukraine, and yet another wave of refugees from the Middle East and North Africa stirred the pot again. 

 

Instead of pursuing introspection and internal reform, the EU blames social media, particularly Elon Musk, for giving its critics a platform where they were able to regroup. In June, national conservative and populist Eurosceptic parties won more seats in the European Parliament than ever before. Within the European Parliament, opposition to the DSA has been led by the likes of Sweden’s Charlie Weimers, who thanked Elon Musk earlier this year for “freeing the bird” and turning Twitter/X into a “bastion for free speech.” Weimers urged Musk to stand firm against the EU’s “Ministry of Truth” created by the Digital Services Act, and so far, Musk has. 

 

Third, the European Union’s global influence is dropping. Since the 2008 financial crisis, economic growth in the U.S. has outpaced that on this side of the Atlantic. While the EU is a world leader in regulation, it struggles with innovation — and needless to say, these are linked. In 2020, the EU for the first time lost a member state when the U.K. decided to strike out on its own. While one can disagree on the wisdom of that choice, there is little doubt that it weakened the EU. Many also forget that part of the motivation behind Brexit was that the U.K. wanted to be able to strike its own trade deals with fast-growing developing economies, instead of being tied to the anchor of the single market. With the EU mired in economic stagnation, this gamble could still prove to pay off in the long run. 

 

The weaker the EU becomes, the more it feels the need to assert itself. Forcing Musk and other tech billionaires to bend the knee would be a political victory by way of asserting, maybe not even dominance, but just relevance. And while it is France, not the EU itself, that has charged Pavel Durov, it still counts. Durov is also a far more accessible target than Musk, since he holds EU citizenship. Whether or not Durov is guilty, it is hard not to interpret his arrest as a warning.

 

In some ways, the fight against free speech on social media has become a sort of culture-war issue for European Union politicians that is used to distract the masses from the real problems facing the continent. It is hardly a coincidence that a French EU commissioner and French authorities are at the epicenter of this mess, roughly a month after a legislative snap election called by Macron left France in gridlock. Since then, Macron has refused to appoint a left-wing prime minister and refused to cooperate with Marine Le Pen’s National Rally (which would give the right a majority). 

 

As a European, I find the developments of the past few months a clear indication that policy-makers in Brussels are struggling to cope with the popular dissatisfaction expressed against them in the recent elections, opting for censorship over dialogue. Whatever one thinks of the platforms being attacked by Brussels, it is crucial for freedom of speech that the EU is not allowed to win this fight.