E.U.'s Digital Services Act Threatens Americans' Free Speech

Thierry Breton, one of the European Union's more obnoxious bureaucrats, is visiting social media companies in the U.S. to check on their readiness to comply with a controversial—indeed, deeply troubling—new E.U. law regulating online content. That law commits private firms to apply E.U. rules to broadly defined "illegal content" and whatever officials consider to be "disinformation."

While they probably won't do it, tech company executives should tell Breton to get lost and work to insulate themselves from Europe's control freaks.

Creepy in Any Language

"I am the enforcer," European Internal Market Commissioner Thierry Breton told Politico ahead of his planned journey to visit American tech companies to "stress test" them for compliance with the Digital Services Act (DSA), which goes into effect this summer. "I represent the law, which is the will of the state and the people."

That comment probably sounds creepy in any of the E.U.'s many languages, but the supranational body's officials are increasingly overt about their intention to apply speech restrictions beyond their jurisdiction. Breton himself has been especially pointed in his dealings with Elon Musk, the Twitter head who, while not always consistent, is the most vocal free speech advocate among social media executives.

"Twitter leaves EU voluntary Code of Practice against disinformation," Breton tweeted two weeks ago. "But obligations remain. You can run but you can't hide. Beyond voluntary commitments, fighting disinformation will be legal obligation under #DSA as of August 25. Our teams will be ready for enforcement."

With Twitter out, signatories to the Strengthened Code of Practice on Disinformation include a range of tech companies, associations, and organizations. Among them is the partially State Department-funded Global Disinformation Index which, earlier this year, listed Reason as a high disinformation risk, along with the New York Post, Real Clear Politics, The Daily Wire, The Blaze, One America News Network, The Federalist, Newsmax, The American Spectator, and The American Conservative. Inclusion on the list seems to reflect the Index staff's ideological disagreement with the outlets.

"If a self-described disinformation-tracking organization wants to loudly proclaim, in partisan fashion, that advertisers should only use mainstream and liberal news sites, it has that right," Reason's Robby Soave noted at the time. "But advertisers should take note of its obvious bias, total lack of transparency in detailing media outlets' scores, and other methodological issues."

Needless to say, this isn't an encouraging sign for the trustworthiness of the E.U.'s own efforts against whatever it defines as "disinformation."

Breton isn't alone in forecasting a global extension of the E.U.'s preference for speech confined within strictly defined boundaries. In January, during separate interviews at the World Economic Forum, European Commission Vice President Věra Jourová criticized Musk's "freedom of speech absolutism" in resisting the Digital Services Act and confidently predicted the United States will soon adopt laws against "illegal hate speech." Beyond dubious predictions about legal changes that would run afoul of the First Amendment, there's a clear expectation in Brussels that online platforms will be conscripted into enforcing the E.U.'s content rules.

A Highly Politicized Model of Enforcement

The DSA "gives way too much power to government agencies to flag and remove potentially illegal content and to uncover data about anonymous speakers," the Electronic Frontier Foundation (EFF) warned last summer as the legislation took final form. "The DSA obliges platforms to assess and mitigate systemic risks, but there is a lot of ambiguity about how this will turn out in practice. Much will depend on how social media platforms interpret their obligations under the DSA, and how European Union authorities enforce the regulation."

The EFF was relatively kind in assessing the law, largely because earlier proposals were even more intrusive. Still, added Christoph Schmon, EFF's International Policy Director, "we can expect a highly politicized co-regulatory model of enforcement with an unclear role of government agencies, which could create real problems."

Wide-Ranging, Incoherent Censorship

"'Illegal content' is defined very differently across Europe,"  cautioned Jacob Mchangama, head of Justitia, a Danish think tank. "In France, protesters have been fined for depicting President Macron as Hitler, and illegal hate speech may encompass offensive humor. Austria and Finland criminalize blasphemy, and in Victor Orban's Hungary, certain forms of 'LGBT propaganda' is banned. The Digital Services Act will essentially oblige Big Tech to act as a privatized censor on behalf of governments — censors who will enjoy wide discretion under vague and subjective standards."

Given that the law prescribes a potential penalty of "6% of the annual worldwide turnover of the provider of intermediary services" for companies that fail to satisfy regulators, online services have a powerful incentive to restrict more speech rather than less to please a multitude of censors.

"The European policies do not apply in the U.S., but given the size of the European market and the risk of legal liability, it will be tempting and financially wise for U.S.-based tech companies to skew their global content moderation policies even more toward a European approach to protect their bottom lines and streamline their global standards," adds Mchangama. The result, he predicts will be "a wide-ranging, incoherent, multilevel censorship regime operating at scale."

A Formalized Censorship-Industrial Complex

Journalists including Michael Shellenberger and Matt Taibbi have pointed to collaboration between government agencies and tech companies to suppress voices and messages disfavored by officialdom as evidence of a "censorship-industrial complex" of privatized speech control that bypasses First Amendment protections. These very real arrangements have largely taken place behind the scenes, retreating (though not disappearing) when exposed. The E.U.'s Digital Services Act formalizes such deputized speech control, putting nominally private entities in the unenviable position of screening online content so as to escape massive fines.

Despite its withdrawal from the Code of Practice Against Disinformation, that will include Twitter, too, so long as it is subject to European law. Thierry Breton is coming to the U.S., after all, as "the enforcer" of speech controls, meaning he expects the E.U. to reach companies here.

Americans and residents of other free-speech-friendly countries should ask that tech companies build custom hothouses of government-approved speech for their customers in restrictive jurisdictions, so the rest of us can enjoy freer environments (and if the subjects of restrictive regimes are savvy enough to bypass control freaks, good for them). The alternative is to hope companies send E.U. officials packing, even if that means ending their formal presence on the censorship-happy continent.