Europe Escalates the Threat to Online Free Speech

It's easy to overstate, but attitudes towards freedom of action differ in the United States and the European Union. Americans tend to believe that people have a right to make their own decisions and are better trusted to do so than coercive governments; Europeans place more faith in the state, allowing room for personal choice only after officialdom installs guardrails and files away sharp edges. Yes, that exaggerates the case and there are plenty of dissenters under both systems, but it captures the treatment of speech and online conduct in the EU's new Digital Services Act.

"Today's agreement on the Digital Services Act is historic, both in terms of speed and of substance," European Commission President Ursula von der Leyen commented on April 23. "The DSA will upgrade the ground-rules for all online services in the EU. It will ensure that the online environment remains a safe space, safeguarding freedom of expression and opportunities for digital businesses. It gives practical effect to the principle that what is illegal offline, should be illegal online. The greater the size, the greater the responsibilities of online platforms."

There's a lot in the proposed law, as you would expect of wide-ranging legislation paired with a companion bill addressing digital markets. The overall tone is of micromanagement of online spaces with dire consequences for platforms that fail to protect users from "illegal and harmful content" as defined by the government. Those who violate the rules by, for example, repeatedly failing to scrub forbidden material in timely fashion, face massive fines or expulsion from the EU market. Of course, no matter official assurances, speech hemmed in by red tape and subject to official oversight in monitored spaces isn't especially "free" at all, which is a contradiction recognized by critics.

"The DSA does not strike the right balance between countering genuine online harms and safeguarding free speech," Jacob Mchangama, the executive director of Copenhagen-based human-rights think tank Justitia, warns in Foreign Policy. "It will most likely result in a shrinking space for online expression, as social media companies are incentivized to delete massive amounts of perfectly legal content."

Mchangama is the author of the recently published Free Speech: A History From Socrates to Social Media, which Katrina Gulliver reviewed for the May issue of Reason. He's familiar with differing attitudes towards speech around the world. In particular, he understands that the American approach leaves speakers more room, while the European approach favors those who impose constraints.

"While free speech is protected by both the EU Charter of Fundamental Rights and the European Convention on Human Rights, these legal instruments offer governments much greater leeway than the First Amendment of the U.S. Constitution when it comes to defining categories, such as hate speech, that can be regulated," he adds in the Foreign Policy piece. "Nor does European law provide as robust protection against intermediary liability as Section 230 of the Communications Decency Act, which shields U.S. online platforms from liability for most user-generated content."

But the danger isn't just to Europeans who voice edgy opinions or manage online forums; it's to the whole world through the "Brussels Effect." That is, it's easier for large platforms like Facebook to apply Europe's tight rules to everybody than it is for them to vary rules by country, which is complicated and risks the wrath of EU regulators when speech inevitably bleeds across digital borders.

Of course, some people hope that the Digital Services Act becomes a global standard. Just as Mchangama is a European who sees free speech as a right that favors the powerless over those in authority, there are American fans of the EU approach who want officialdom to exercise more control.

Reacting to the announced sale of Twitter to Elon Musk, The New Yorker's John Cassidy objects that "Musk seems intent on taking Twitter back to the not at all distant era when social media was a free-for-all." He sniffily dismisses that prospect as unacceptable. For proper regulation of speech, he suggests "the E.U. has just provided a road map for how it could be done: by putting the onus on social-media companies to monitor and remove harmful content, and hit them with big fines if they don't." 

"Musk would surely object to the U.S. adopting a regulatory system like the one that the Europeans are drawing up, but that's too bad. The health of the Internet—and, most important, democracy—is too significant to leave to one man, no matter how rich he is."

But, as the Competitive Enterprise Institute's Clyde Wayne Crews Jr. warned in 2019, "the dangers of social media company, legislative and 'watchdog'-backed mandates to censor speech and otherwise regulate 'harmful content' are themselves the harms facing the Internet of today and the splinternet of tomorrow. Some authoritarian-minded interventionists seek a pre-ordained deplatforming of unpopular ideas and controversial debate and even pretend they protect democracy."

Such restrictions put the definition of "harmful" in the hands of self-serving political operatives and favor large established and, yes, rich companies, for whom compliance is easier, over smaller firms.

"Social media giants and international governments engaging in censorious consultative alliances and frameworks incorporating politically derived norms threaten free expression even in the U.S.," Crews added.

Justitia made a similar point about Germany's censorious 2017 NetzDG law. "In under a year, the number of countries copy-pasting the NetzDG matrix to provide cover and legitimacy for digital censorship and repression has almost doubled to a total of 25," the think tank noted. The German law inspired copycat "measures to combat vaguely defined categories of hate speech and fake news by placing responsibility on the social media platforms for user content."

Beyond the framework of individual rights, the practical argument for free speech is that the powers-that-be can't be trusted to distinguish "good" speech from "bad speech" and to ban only that which is harmful. As Justitia emphasizes, that has already happened with NetzDG. There's no reason to expect a less authoritarian outcome from the Digital Services Act which borrows much from the German law.

Mchangama proposes using human-rights law as a benchmark for speech regulation, though he concedes that it's "not a panacea." More promising is his suggestion for "distributed content moderation" including "voluntary filters that individual users could apply at will." People could decide for themselves what is "harmful" and block or engage as they pleased. That might satisfy everybody except those most invested in controlling others.

Fans of regulated speech always seem to envision the regulators as sharing their own sensibilities in the exercise of censorship powers; they never imagine themselves being muzzled. But the "free for all" to which they object means freedom for them as much as for everybody else, and if they get what they want they may come to miss it as much as the rest of us.