X and Brussels have been heading for a conflict over the EU’s new Digital Services Act for a while now.
The EU’s leadership resents America’s technological success, and it dislikes the wrong sort of free speech. X (Twitter) is a manifestation of the first and a device to help enable the second. X and Brussels have been heading for a conflict over the EU’s new Digital Services Act (DSA) for a while now.
The EU Commission describes the DSA as follows:
[It] regulates online intermediaries and platforms such as marketplaces, social networks, content-sharing platforms, app stores, and online travel and accommodation platforms. Its main goal is to prevent illegal and harmful activities online and the spread of disinformation. It ensures user safety, protects fundamental rights, and creates a fair and open online platform environment.
Note that the DSA has been designed to prevent not only activities that are illegal but also those that are “harmful” (the “and” should be read as an “either/or”). The DSA does not contain a definition of those terms. That will depend on how those words are defined in other laws of either the EU or its member states.
“Real” disinformation — information deliberately designed to mislead — undoubtedly exists, and is certainly used by Russia, China, and others that do not wish the West well. The way to deal with it, on top of long-established legal remedies, is for the most part more speech, not less.
Moreover, abuse of the term “disinformation” can be used as a way to suppress expression that, in a free society, no one should want to see suppressed. What’s more, in the hands of an aggressive regulator, the boundaries between misinformation (where the information may be false, but there is no intention to deceive) and disinformation can be blurred. And who is to decide what is true or not? And what are their biases?
Quis ipsos custodes custodiet?
The DSA includes the power to impose extraordinarily heavy fines (up to 6 percent of revenues). Such fines go far beyond deterrence and are intended to terrorize. They are designed to ensure that social-media companies err very far on the side of caution when considering what content to ban, a de facto, but not de jure, extension of the restriction on free speech contained in social-media laws, which would, for all practical purposes, be very difficult to challenge.
In any event, the EU has now launched a multi-pronged action against X.
The European Union brought its first charges under a new social media law on Friday, accusing Elon Musk’s X of violating the regulation by deceiving users and not living up to transparency requirements.
European regulators say when Musk relaunched the blue check “verification” system after he purchased Twitter in late 2022, he allowed anyone to pay for the once-coveted badge. That led to the platform becoming flooded with spoof accounts, impersonators and a glut of misleading information.
“It negatively affects users’ ability to make free and informed decisions about the authenticity of the accounts and the content they interact with,” the commission wrote in its findings. “There is evidence of motivated malicious actors abusing the ‘verified account’ to deceive users.”
There are other charges too.
As part of his response, Musk has tweeted :
The European Commission offered 𝕏 an illegal secret deal: if we quietly censored speech without telling anyone, they would not fine us. The other platforms accepted that deal. 𝕏 did not.
If that is so (or if it is not), it would be interesting to hear what other social-media companies have to say about it.
Brandon Gorrell at Pirate Wires tweets out a description of the deal that was allegedly proposed here.
An extract:
The EC [European Commission] wanted 𝕏 to hire a team of people in the EU that could number in the hundreds to remove ‘misinformation’ from the platform, a person with knowledge of the issue told PW Editor-in-Chief @micsolana.
X would have no recourse in these removal decisions, the person said. “The objective of the Digital Services Act is to ensure a safe and fair online environment for European citizens that is respectful of their rights, in particular freedom of expression,” EC spokesperson Thomas Regnier told Pirate Wires over email. “The DSA requires a fair and transparent complaint mechanism for users. If an account is suspended, the user has the right to contest the decision. This means that decisions must not be arbitrary, and users are empowered to protect their online presence… When an account is restricted, the user must be informed and has the right to appeal the decision.”
Musk retweeted Gorrell’s story with a one-word comment: “Accurate.”
The email from the EU Commission’s Regnier is cleverly worded. In it he refers to the “right” (under the DSA) of someone who has been suspended from, say, X to “appeal” any suspension. Last time I looked, Twitter was a private company. There is no right to its services, or, at least, there would not be in a jurisdiction that respected private property. Stressing that point, however, is designed to allow Brussels to pose as a defender of free speech when, quite clearly, it is not.
Thierry Breton, the EU Commissioner in charge of the EU’s internal market, has denied allegations of a secret deal, including in a tweet from which the following is an extract:
The DSA provides X (and any large platform) with the possibility to offer commitments to settle a case. To be extra clear: it’s *YOUR* team who asked the Commission to explain the process for settlement and to clarify our concerns. We did it in line with established regulatory procedures. Up to you to decide whether to offer commitments or not. That is how rule of law procedures work.
Could it be that “the process for settlement” included accepting EU censors in-house?
Time will tell.