The Long Arm of Europe’s Crackdown on Speech

National Review Online

Thursday, August 15, 2024

 

Thierry Breton, the EU’s single-market commissioner, has been rapped over the knuckles by his colleagues for writing too much too soon. Not long before Elon Musk’s chat with Donald Trump, Breton had written a letter (posted on X) in which he warned that with the EU’s new Digital Services Act (DSA) in force, Musk should watch what was said or, more precisely, what was streamed. Musk retorted . . . impolitely. The conversation went ahead.

 

Breton obviously wanted to make a very public assertion of Brussels’s power at what seemed to him to be an ideal moment. The Commission quickly made it clear that neither its president, Ursula von der Leyen, nor its other commissioners were aware that the letter was going out. There is already alarm in the EU at the thought of a second Trump term, and memories of Breton’s bullying would be unhelpful should Trump make it back to the White House. Moreover, although the EU is, in many respects, post-democratic, its leadership understands the importance of a democratic façade, and Breton’s letter looked a lot like election interference.

 

The DSA imposes a wide range of obligations on online service providers, including social-media companies (wherever they are incorporated) if they offer their services in the EU. Those obligations increase for companies with at least 45 million users per month in the EU, and which have been designated by the EU as either a very large online search engine (VLOSE) or a very large online platform (VLOP), a category that captures a number of social-media companies, including Facebook and Twitter. According to Breton, Twitter has around 100 million users in the EU.

 

Without going into detail on the DSA’s provisions, they include reporting obligations (Breton directly and indirectly refers to this in his letter) that effectively make the EU any American VLOP’s prime regulator. Some of the consequences for such a company’s content “moderation” are, at first glance, relatively innocuous. That an American social-media business has to prevent content illegal in all or part of the EU being seen in the relevant territory is no surprise. If that content is legal in the U.S., the difference reflects poorly on the Europeans — but they are still free enough for that not to be a major concern on this side of the Atlantic, with one proviso: The U.S. social-media company must have the technical capability to tailor what can be seen on its site on a country-by-country basis.

 

If that’s the case, the only problem is the made-in-Brussels bureaucratic load, which, even then, would still include being subject to the EU’s onerous compliance mechanisms. But if the U.S. company does not have the ability to make those country-by-country cuts, or if the bureaucratic burden resulting from custom censorship becomes too heavy to face, then its American clients will find that posts they put up in the U.S. will be governed by the EU’s repressive standards and pulled. There’s nothing innocuous about that.

 

Making matters worse, the same may be true of posts that are also legal in the EU but are, for EU purposes, “harmful,” a category than can encompass “disinformation,” “misinformation,” and “fake news,” all concepts flexible enough to delight censors on the march. Moreover, fines payable by a VLOP for breach of the DSA’s requirements can amount to as much as 6 percent of global sales revenues, an absurdly high number designed to encourage social-media companies to err on the side of caution when it comes to reining in speech.

 

X is run by a defender of free speech, but the managements of other VLOPs unable or unwilling to establish speech moderation that varies on a regional or national basis will take the cheaper, safer, and easier decision to adopt EU-style censorship of all the content they host, even at the cost of reducing Americans’ ability to freely express themselves online in America.

 

As U.S. social-media companies host a private space in which the First Amendment does not apply, it won’t be easy to shield American social-media companies and their American customers from aggressive European regulators fundamentally opposed to American notions of free speech and maddened by the EU’s miserable failure to match the success of U.S. tech companies.

 

Breton’s broader fight with X over the DSA’s compliance regime is still underway and looks likely to end up in the EU’s courts, almost certainly unhappily for Musk. Breton may have blundered in spelling out the EU’s ambitions to be the censor of the West’s online discourse quite so bluntly (it’s worth taking the time to read his letter), but those ambitions are not going away.

 

What to do? If X fired a warning shot by cutting off, say, France, Breton’s native land, Breton the censor would only rejoice. If the U.S. government won’t or can’t help, Americans should demand that their U.S. social-media companies ringfence their EU content by enough to ensure that American online speech will not be policed by Brussels.