The EU’s new tech law could threaten Americans’ speech online

Ailan Evans, DCNF

  • The EU’s Digital Services Act, a new law regulating how online platforms moderate content, could incentivize tech companies to censor Americans’ speech online, experts say.
  • “Companies will, at least initially, take a position that encourages more curation than less curation,” Joel Thayer, president of the Digital Progress Institute, told the Daily Caller News Foundation, adding that “we’ll start to see even more of an uptick in larger tech platforms moderating content.”
  • The law has earned the backing of former President Barack Obama and Hillary Clinton, who have praised it for tackling online disinformation.

A comprehensive European law regulating how tech companies moderate content could encourage platforms to restrict the speech of American users, experts say.

The Digital Services Act (DSA), an extensive set of proposed regulations governing online platforms, was agreed to politically by the European Union’s governing bodies April 23, and currently awaits formal approval by the European Parliament and the European Council. If finalized, the law imposes new obligations on platforms including transparency requirements for algorithm and content moderation decisions, mechanisms to respond to government takedown requests and, crucially, measures to force companies to crack down on disinformation and harmful content.

In particular, the law could lead to more aggressive moderation of online speech by tech companies and not just in Europe, experts say, as platforms are incentivized to moderate content globally in compliance with the DSA.

“Companies will, at least initially, take a position that encourages more curation than less curation,” Joel Thayer, president of the Digital Progress Institute, told the Daily Caller News Foundation, adding that “we’ll start to see even more of an uptick in larger tech platforms moderating content.”

While the final text of the DSA has yet to be finalized, the proposed law includes a provision added following Russia’s invasion of Ukraine forcing very large online platforms to implement mechanisms combating misinformation during crises. The law would also impose new reporting mechanisms and transparency requirements, as well as force platforms to submit to audits and adopt mandatory codes of conduct regarding online content.

In addition, the law would hold tech companies liable for certain content flagged as “illegal” and require platforms to quickly remove such content. Failure to comply with the DSA would result in heavy fines.

“Platforms should be transparent about their content moderation decisions, prevent dangerous disinformation from going viral and avoid unsafe products being offered on market places,” Margrethe Vestager, European Commissioner for Competition, said in a statement announcing the law. “With today’s agreement we ensure that platforms are held accountable for the risks their services can pose to society and citizens.”

The effect of the DSA is likely to extend beyond the borders of Europe, experts say, as platforms would be encouraged to moderate content globally in compliance with the most burdensome regulatory regime.

“This will inevitably creep into the internal policy process of the large platforms as part of their risk evaluation for regulatory fines that will most likely bleed into a global policy perspective,” Shane Tews, nonresident senior fellow at the American Enterprise Institute, told the Daily Caller News Foundation.

Companies are likely to define more explicitly the boundaries of acceptable speech on their platforms, Tews said, so as to avoid regulatory fines.

“Given the EU’s economic and political clout, the DSA may have a substantial impact beyond Europe through the so-called ‘Brussels Effect,’” Jacob Mchangama, executive director of Danish human rights group Justitia, wrote in Foreign Policy, referring to the phenomenon in which countries outside the EU tend to comply with its laws due to its regulatory power. “As such, the DSA is likely to affect the practical exercise of free speech on social media platforms, whether located in Silicon Valley or owned by American tech billionaires.”

Prominent American political figures, including Hillary Clinton and former President Barack Obama, have cheered on the laws, painting it as a model for U.S. laws governing Big Tech.

“For too long, tech platforms have amplified disinformation and extremism with no accountability. The EU is poised to do something about it,” Clinton tweeted, while Obama praised the law for forcing tech companies into “following certain safety standards that we, as a country, not just them, have agreed are necessary for the greater good” in a speech at Stanford University in April.

However, a U.S. version of the DSA may not pass constitutional muster, according to Thayer, due to the First Amendment’s protection against government regulation of speech.

“If the U.S. adopts the DSA wholesale where the U.S. requires platforms to take content down, then that law may be unconstitutional via the First Amendment as SCOTUS interpreted in PG&E v. Public Utilities Commission and Miami Herald Publishing Co. v. Tornillo,” Thayer told the DCNF. “The reason being is that the US government would be asking platforms to take down content it doesn’t like, which is more akin to the First Amendment violation.”

The act has also received significant pushback among European politicians and activists, who view the bill as an assault on free speech.

“Tech companies already naturally suppress content and suspend user accounts, and now they will do so more, as a result of heavy and swift fines provided for by the DSA,” wrote Swedish Member of European Parliament Jessica Stegrud. “Arbitrary legislative categories like ‘harmful’ or ‘undesired’ will open all floodgates, as history teaches us.”

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