The spread of fake news and disinformation was one of the great battlehorses of the European Union during the last legislature, in which new legislation was promoted to regulate online life. The intention of the Digital Services (DSA) and Digital Markets (DSA) laws is that illegal offline conduct would also be online and to put a stop to excesses on large platforms, which face multimillion-dollar fines for non-compliance with the laws. norms. However, as soon as the new mandate of the European Commission began, it has encountered the challenge of the two main magnates in the sector: Elon Musk and Mark Zuckerberg. The issue deeply worries most European governments, but their capacity to respond is limited.
Governments such as France and Poland have come to accuse the owner of . Emmanuel Macron accused Musk of promoting a “reactionary international” and interfering in the elections of the Old Continent and his Government has directly pointed the finger at the European Commission, which he has demanded to act “more vigorously.”
“If the European Commission does not know how to protect us against these interferences or those threats of interference, it has to give the Member States, France, the ability to protect itself,” warned the Foreign Minister, Jean-Noël Barrot: “The Public debate cannot be relocated, nor left deregulated on large social media platforms owned by American billionaires.”
Freedom of expression or interference?
The ability of the European authorities to act regarding the magnate’s support for ultra forces such as the Alternative for Germany is practically nil because freedom of expression is protected. “Elon Musk as a person, like any of us, has the right to freedom of expression and, therefore, he can say things that we greatly dislike and with which we strongly disagree. The important thing is, for those of us who disagree, to explain why what he says is incorrect or false, incites hatred, etc.,” explains Jordi Calvet-Bademunt, principal researcher at The Future of Free Speech (Vanderbilt University).
Nor does he consider that there is foreign interference as such due to being the owner of X and compares it with the support that British media such as The Economist or The Guardian expressed for Kamala Harris in the US elections. And about the fact that he is one of President-elect Donald Trump’s top advisors? “It is not uncommon for politicians from another country to express their opinion on another country’s politics. Again, we will greatly disagree with Musk’s positions, but that does not prevent him from expressing his support for one candidate or another,” he explains.
Musk’s freedom of expression is the argument put forward in the European Commission, where they maintain that his work and the scope of action of the DSA has to do with the operation of the large platforms themselves. And that is where we also encounter several problems, one of them being the slowness of the bureaucratic processes of the community bubble. “This is new legislation. It is a very new area that we are exploring and we are the first in the world to have established this type of legal framework. So it takes time to get started,” the community spokesperson, Thomas Reigner, justified this week about the lethargy in which the infringement files of the large digital platforms are mired.
The slowness of Brussels
The European Commission has opened several investigations into X, Meta or TikTok for various breaches of the DSA, but they have hardly borne fruit. The one that is most advanced is the one that began more than a year ago (December 2023) against Musk’s social network for violations regarding transparency, account verification, public scrutiny or access to researchers and the repository. of advertisements. The procedure is tedious and back and forth. When the file was opened, X responded and in July 2024 the European Commission took a further step by making a formal accusation, to which the company could again present allegations. These are being analyzed right now and community sources maintain that there are hundreds of documents.
Furthermore, the accusation left out a good part of the file: what had to do with the verification processes through community notes (which is what Meta now wants to copy) and what related to the control of hate speech. That continues in an earlier phase. “The investigation is still underway,” they say in Brussels more than a year later.
Among the “systemic risks” analyzed by the European Commission within the framework of the DSA is the promotion of certain speeches or accounts – which could include Musk himself – over others. But this control also raises doubts. What community sources maintain is that the promotion of certain accounts can be beneficial in some moments, such as information on natural disasters. “There is no rule that says you can’t boost accounts. The architecture of the DSA is that promoting an account through a recommendation system must be considered as an additional risk factor,” these sources express.
“It is a very recent norm and with very vague terms regarding systemic risks that no one knows how to interpret: the Commission does not know, companies do not know and civil society does not know,” says Calvet-Bademunt, who points to a debate on the matter and which he defines as “a mixed bag in which all the things we want for our society go”: “We want the platforms to fight against the dissemination of illegal content, to protect our elections, but we also want them to protect freedom of expression. That is where the problems arise, how we have to interpret these systemic risk obligations and what they imply for X.”
The Future of Free Speech researcher believes that cutting back on far-right speeches now could set a dangerous precedent if at some point it controls the European Commission and, therefore, is responsible for applying the rules. “Promoting a type of content that is more right-wing or more left-wing should not lead to sanctions. And the reason we give for that is precisely that what a person applies today can be applied tomorrow by a politician from the extreme right or extreme left who worries the opposite side,” he defends.
The jurist Borja Adsuara, specialized in digital rights, points in the same direction as Calvet-Bademunt. He argues, in fact, that the DSA has opened a “dangerous” path by allowing social networks to remove content that is not illegal, but that may be offensive to some people. Furthermore, he explains that the European Commission itself and national governments have tried to indicate to the platforms what are the “adequate practices” for this moderation through the agreements of good practices in social networks, which in his opinion implies “indirect censorship.” ” by the public powers.
For the lawyer, the range of movement of the European Commission regarding the latest changes in X and the Meta networks is limited. He warns that if Brussels finally decides to fine Musk’s network for its data verification system based on the activity of the users themselves, it is foreseeable that he will form a tandem with Zuckerberg and take the case “to the Court of Justice of the EU or even to the European Court of Human Rights, since it is a matter that has to do with freedom of expression.”
However, Adsuara highlights that the DSA proposes the creation of national self-regulatory bodies for disinformation. “They will be similar to Autocontrol in the advertising field,” he points out, and they can be used “like the VAR, in football, to request that the moderation decision of a social network be reviewed. That will create a jurisprudence of resolutions that will set a precedent,” he details in conversation with this medium.
These bodies (there will not have to be only one) must be approved by the National Markets and Competition Commission (CNMC), which the Government has recently provided with more capabilities to act as a specific regulator of the digital giants. .
Pressure on the European Commission
Publicly, the European Commission, which is awaiting the inauguration of Donald Trump to see how it articulates the relationship with the new tenant of the White House who turned the European leadership upside down in his previous mandate, has been very cautious in his response to both Musk and Zuckerberg’s following of him. However, the vice president of the European Commission for Technological Sovereignty, Security and Democracy, Henna Virkkunen, and the Commissioner for Justice, Michael McGrath, committed in a letter sent to the area’s MEPs to “vigorously” promote an investigation. on whether Elon Musk’s social network X violated the content moderation law, as reported by Bloomberg.
The EU’s capacity fundamentally involves the imposition of multimillion-dollar sanctions for non-compliance with the rules. Fines can reach 6% of the companies’ global turnover. The matter has opened a deep debate and there are those who point to the blocking of the platforms due to interference or non-compliance with the rules, but it is a highly unlikely scenario. “Closing platforms under the Digital Services Act is something extremely rare, specific and has to be justified under very specific circumstances,” says Calvet-Bademunt, who sees this possibility as “very low.”
At the political level, however, pressure on the European Commission is intensifying. The groups that support the coalition that ‘governs the EU’ (EPP, socialists, liberals and greens) have promoted a debate on the matter in the European Parliament. PSOE MEP Hana Jalloul has prepared a letter that more parliamentarians are signing to send at the beginning of next week to the high representative, Kaja Kallas, so that she can take action on the matter. Jalloul considers that Musk, by using control of his networks to encourage far-right leaders, can “alter public opinion and electoral results”, which aggravates the threat to democracy in the EU and poses “new tools and sanctions”. to address foreign interference in electoral processes, with updated tools to counter emerging threats posed by online platforms like X and the actions of figures like Elon Musk.” “The EU’s current foreign policy tools have proven insufficient to address the scope and complexity of this threat,” warns the socialist.
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