A European Union (EU) law called the Digital Services Act (DSA), which recently went into effect, could end up limiting Americans’ speech online.
The law, which went into effect on August 25, requires “very large online platforms” (VLOPs) to increase content moderation by cracking down on “disinformation” and other supposedly harmful content, among numerous other provisions. Large tech companies’ compliance with the law could drastically increase censorship in the U.S. in addition to Europe as the DSA incentivizes platforms to implement the moderation worldwide, experts told the DCNF.
“The DSA is just the latest example of the European Union targeting American tech companies with burdensome regulations that seek to export a more censorious content moderation regime around the globe,” James Czerniawski, senior policy analyst at Americans for Prosperity, told the DCNF.
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The DSA applies to companies with more than 45 million users in the EU, including American companies such as Facebook, X (formerly Twitter), Instagram and YouTube, according to the European Commission (EC). These VLOPs “must comply with the most stringent rules of the DSA,” or face financial penalties of up to 6% of their global annual revenue.
Content moderation under the DSA includes actions to combat unlawful posts, such as enabling users to “flag” such content and for platforms to collaborate with “specialized ‘trusted flaggers’ to identify and remove illegal content,” according to the EC. The EU has different speech laws than the U.S., with one example being that certain “hate speech” is illegal in Europe.
Moreover, the DSA “regulates … systemic issues such as disinformation, hoaxes and manipulation during pandemics, harms to vulnerable groups and other emerging societal harms,” according to the EC.
Platforms are likely to adopt universal policies that will curtail protected American user speech to comply with the EU’s DSA, especially because of the potential penalties, experts explained.
“The First Amendment and Section 230 protect platforms’ rights to set their own standards (which is a good thing) but when confronted by legally binding rules sanctioned by large fines on a huge market like the EU, Silicon Valley platforms will have strong incentive to skew their global content moderation policies and standards towards Europe rather than the original civil-libertarian techno-optimistic ideals that guided social media companies,” Justitia CEO Jacob Mchangama told the DCNF.
One of the main priorities of the DSA is the “mitigation of systemic risks, such as manipulation or disinformation,” according to the EC.
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“You’re going to expect companies to be overzealous probably in some ways because they don’t want to risk getting fined by the European Union because they were not in compliance with the DSA,” Czerniawski told the DCNF. “Such a proposal would never pass constitutional muster here in the United States, and our government needs to reject this blatant targeting of American companies and defend American values on the international stage.”
Another top priority of the DSA is to safeguard “fundamental rights,” including freedom of speech, according to the EC.
“The DSA has the preservation of freedom of expression, including freedom and pluralism of the media, at its very core,” EC Spokesman Johannes Bahrke told the DCNF. “It strikes the right balance between creating rules for online intermediaries to tackle illegal content, while safeguarding freedom of expression and information online.”
It will also establish transparency in content moderation, Bahrke added.
“Content moderation does not mean censorship,” Bahrke told the DCNF. “The Digital Services Act mandates transparency around ‘shadow banning’ and similar content moderation. When an account gets restricted, the user must be informed and has the right to appeal the decision.”
However, the EU’s regulations are not as precise, which makes them more challenging to adhere to than U.S. laws, Joel Thayer, president of the Digital Progress Institute, told the DCNF.
“Companies are going to have to deal with selective enforcement because, unlike in the U.S., regulations in the EU are not hard-fast, but aspirational,” Thayer told the DCNF. “This makes compliance very difficult without these companies striking deals with either the EC or individual Member States to the extent they are relevant.”
“The main issue with the DSA in particular [is] that the EU is more inclined to censor political speech, where we tend not to so citizens can freely express themselves,” Thayer added.
Billionaire X owner Elon Musk told the EC that the platform would comply with the DSA, Reuters reported. Musk has frequently advocated for free speech and has taken some significant steps toward reducing speech restrictions on X, but the company has also taken actions that have advanced censorship under his ownership.
Musk’s X has updated its election moderation policies, expanded its “freedom of speech, not reach” enforcement, and is hiring specialists to protect users from “disinformation,” according to a now-deleted job description posted on Aug. 11.
“It is probably too soon to tell how the DSA is currently affecting free speech, however there is a very real risk that notice and takedown obligations as well as the risk mitigation duties will lead to — even more — over-removal of legal content by platforms according to their own terms of service,” Mchangama told the DCNF.
“Americans are more likely to wake up to an even more ‘woke’ internet when the EU law is in full swing,” Thayer told the DCNF.
Meta, Facebook, Twitter, Instagram and YouTube did not immediately respond to the Daily Caller News Foundation’s request for comment.
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