E.U. Law Threatens Free Speech, Online Groups Say

The E.U.’s Digital Services Act will encourage censorship around the world and even in the U.S.

Politicians who posture like totalitarian wannabes might well be giving us glimpses of their intentions. That brings us to European Union (E.U.) Internal Market Commissioner Thierry Breton, who threatens to wield a law that goes into effect August 25 as a censorship tool. In response, digital organizations and civil liberties groups—some of which previously warned about the Digital Services Act's (DSA) far reach—demand "clarification" by Breton and ask E.U. authorities to exercise restraint in enforcement.

Censors and Not Afraid to Say So

"When there is hateful content, content that calls – for example – for revolt, that also calls for killing and burning of cars, they will be required to delete [the content] immediately," Breton commented earlier this month in a French radio interview, invoking the powers of the looming DSA. "If they don't act immediately, then yes, at that point we'll be able not only to impose a fine but also to ban the operation [of the platforms] on our territory."

Breton spoke in response to French President Emmanuel Macron's call for the power to censor the internet after weeks of rioting that he claimed was coordinated online.

"We have to think about the social networks, about the bans we'll have to put in place," Macron said on July 3. "When things get out of control, we might need to be able to regulate or cut them off."

Macron drew immediate criticism from opponents in France who compared his scheme to policies in such garden spots as China and Iran. But Breton was clearly on board with the idea. The EU official pointed to the DSA's measures for regulating "illegal content, online disinformation or other societal risks" as authorizing censorship not just in Macron's France, but across the E.U.'s member states.

This wasn't Breton's first venture into totalitarian posturing. In May he huffed "I am the enforcer. I represent the law, which is the will of the state and the people" with regard to forcing digital platforms, many based in the United States, to comply.

"You can run but you can't hide," he tweeted when Elon Musk pulled Twitter out of an agreement with the E.U. regarding so-called disinformation. "Beyond voluntary commitments, fighting disinformation will be legal obligation under #DSA as of August 25."

Anybody paying attention might understandably view the high-profile comments as a peek at how the law is to be enforced in the very near future.

Could You Clarify What You Mean by 'Ban'?

"These comments could reinforce the weaponisation of internet shutdowns, which includes arbitrary blocking of online platforms by governments around the world," 67 organizations protested in a July 26 letter responding to Breton's agreement with Macron about muzzling social media.

"Arbitrary blocking of online platforms and other forms of internet shutdowns are never a proportionate measure and impose disastrous consequences for people's safety," the letter continues. "The European Union fully recognises that internet shutdowns severely hinder the enjoyment of economic, social, and cultural rights, as well as civil and political rights. By no means should arbitrary blocking of Instagram, TikTok, or other social media platforms be viewed as a solution to any event or perceived crisis in a Member State or across the EU."

The signatory organizations, which include Article 19 and the Electronic Frontier Foundation, demand "clarification" of Breton's comments, as well as of whether the DSA would allow for shutting down online platforms. They also ask the European Commission to ensure that national governments, which enforce EU laws, don't interpret the legislation in an "overly broad" way.

Clarification? The Censors Have Been Pretty Clear.

The problem is that Breton has been very clear with each of his utterances. He's a thorough authoritarian, and comfortable with censorship. The signatory groups aren't really asking him for clarification; they want him to disavow his comments and the sentiments they represent. Even if he threw them a rhetorical bone, it would be worthless since he's revealed his contempt for free speech and his vision for the law's application.

As for national governments, France's President Macron openly states his desire for the ability to muzzle online speakers. He's no fan of unfettered speech and wants expanded authority to control internet content. The letter points to specific French legislation that would give Paris "an unprecedented government censorship tool." He's unlikely to be alone in his authoritarian inclinations.

And the European Commission can't honestly give assurances "that the DSA does not, in fact, provide for the possibility of shutting down online platforms as a sanction for failing to remove 'hateful content.'" Critics, some of whom signed the letter, have warned that the wide-ranging law threatens just that.

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 warned a year ago as the legislation was taking final form.

"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," Jacob Mchangama, head of Justitia, a Danish think tank and signatory to the letter, cautioned in December 2022. "Add to this the EU's own laws banning Russian propaganda and plans to toughen EU-wide hate speech laws, and you have a wide-ranging, incoherent, multilevel censorship regime operating at scale."

Censorship Contagion

"With non-EU countries embracing DSA-like regulations, Breton's comments, without the requested clarification, threaten to reinforce the weaponization of internet shutdowns around the world, and give cover to governments using arbitrary blocking to shroud violence and serious human rights abuse," notes the Electronic Frontier Foundation. Copycat authoritarian legislation predates the DSA, so the new law is almost certain to encourage even more censorship emulating democratic (but not so free) Europe.

Even those of us in the land of the First Amendment are likely to be affected because it's easier for companies to inflict universal restrictions than to apply different rules in free and unfree jurisdictions.

"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," according to Mchangama.

As the organizations signing this last-ditch letter know, nobody can claim they weren't warned about the DSA's potential dangers. Not only have civil liberties advocates pointed out the law's excessive reach, but European officials repeatedly telegraph their desire to wield it as a tool for censorship.