The Volokh Conspiracy

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Free Speech

Free Speech Historian Jacob Mchangama on Europe's Digital Services Act


A very interesting L.A. Times op-ed from a couple of weeks ago; an excerpt:

In November, the European Union's Digital Services Act took effect, with enforcement beginning for some businesses during the next year and for the rest in January 2024. The stated purpose of the law is to end the supposed "Wild West" of the internet and replace it with a rules-based digital order across the EU's member states. The sweeping piece of legislation includes an obligation for platforms to evaluate and remove illegal content, such as "hate speech," as fast as possible. It also mandates that the largest social networks assess and mitigate "systemic risks," which may include the nebulous concept of "disinformation."

This is in stark contrast to the U.S., where platforms enjoy broad immunity from responsibility for content created by users, and where the 1st Amendment protects against most government restrictions of speech….

Removing illegal content sounds innocent enough. It's not. "Illegal content" is defined very differently across Europe. In France, protesters have been fined for depicting President Macron as Hitler, and illegal hate speech may encompass offensive humorAustria 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. 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….

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. Referring to European legal standards may thus provide both formal legitimacy and a convenient excuse when platforms remove political speech protected by U.S. law, and that Americans would expect private platforms facilitating public debate to safeguard too….