“This legislation… is a Trojan horse: it presents a facade of respecting democratic principles… But behind this liberal facade, the exact opposite is happening: an attack is taking place against the constitutional order.”
European Commission President Ursula von der Leyen opened her speech at Davos this year by underscoring the “top concern” among the World Economic Forum’s partner companies, which also happens to be one of the Commission’s biggest worries as well: “misinformation and disinformation.” These two risks, she said, are “serious because they limit our ability to tackle the big global challenges we are facing – climate, demographics and technological changes, and spiralling regional conflicts and intensified geopolitical competition.”
The primary solution to the problem of mis- and disinformation, according to Von der Leyen, is to forge a grand coalition between “business and governments,” which, as luck has it, fits snugly with the WEF’s primary mission in life: to promote public private partnerships at all levels and in all areas of government, for the benefit primarily of its partner companies.
“It has never been more important,” VdL said, “for the public and private sector to create new connective tissue. Because none of these challenges respect borders. They each require collaboration to manage risks and forge a path forward.”
Through its Digital Services Act (DSA), the European Commission has already put into operation arguably the most ambitious manifestation yet of this grand coalition between government and business. The DSA imposes a legal requirement on very large online platforms (VLOPs) and very large online search engines (VLOSEs) to rapidly remove misinformation, disinformation, and hate speech. The European Commission has primary, but not exclusive, regulatory responsibility for these companies. In a few weeks’ time, the same requirements will apply to all other online service providers, though responsibility for execution and enforcement will lie with national authorities.
A Global Impact?
As time goes by, the implications of the DSA are likely to extend far beyond EU borders. Like its predecessor, the General Data Protection Regulation (GDPR), it could even have a global impact, through three mechanisms mentioned by Scott K. Ginsburg, a professor of Law and Technology at Georgetown University, in his paper, “When the Digital Services Act Goes Global”:
First, companies could adopt DSA-compliant practices worldwide. This is a common form of the Brussels Effect in Anu Bradford’s account—when companies align their global practices with Brussels’ rules largely out of possible efficiency of adopting those same standards worldwide. This is also the main mechanism in Nunziato’s account of the global effects of the DSA.
Second, governments might find much to envy in the Digital Services Act—which validates burgeoning efforts to bring the internet under government control, provides special tools for speeding up the removal of illegal content under local law, includes procedural rules that might limit the power of platforms to label or suppress other content, conveys power to evaluate risk mitigation measures, and sets out “break glass” crisis control mechanisms—complete with the possibility of getting six percent of the company’s global revenue for violations.
A third mechanism is possible as well. The European Union could itself
promote the DSA as a global model, perhaps incorporating parts of it into its
model free trade agreements.
As I noted in a previous post, the institution that gets to define what actually constitutes mis- or disinformation on very large internet platforms and search engines for the EU’s roughly 450 million citizens (as well as arguably untold millions of citizens far beyond Europe’s borders) is the European Commission itself:
The same institution that is in the process of dynamiting the EU’s economic future through its endless backfiring sanctions on Russia and which is mired in Pfizergate, one of the biggest corruption scandals of its 64-year existence.* Now the Commission wants to take mass censorship to levels not seen in Europe since at least the dying days of the Cold War. In this task it will have, in its own words, “enforcement powers similar to those it has under anti-trust proceedings,” adding that “an EU-wide cooperation mechanism will be established between national regulators and the Commission.”
As the DSA becomes an integral part of the national constitutions of the EU’s 27 member states in the coming weeks, it is accompanied by a wall of silence in the mainstream media (quelle surprise!). Even on Twitter/X there is little discussion, which may mean that Elon Musk’s social media company is trying to abide by the EU’s new censorship regime after already facing an “illegal content” probe over the Israel-Gaza war. Most EU citizens, meanwhile, have probably never even heard of this new regulatory architecture being constructed around the worldwide web, making this arguably the quietest coup in modern European history.
One of the rare voices of criticism I have found on the matter is an op-ed in Berliner Zeitung by a retired German judge called Manfred Kölsch. Titled “Judge Warns: Freedom of Expression in EU Is in Acute Danger,” the article is worth reading in its entirety (click here for an English-language translation on German financial journalist Norbert Haring’s blog). But for the purposes of this post, I have included a few of the choicest excerpts (translated with the help of a fluent German-speaking family member).
“A Trojan Horse”
Kölsch begins the article by unpicking the Orwellian aspects of the DSA:
This legislation on digital services is a Trojan horse: it presents a facade of respecting democratic principles. The EU Commission stresses that the DSA is intended to establish “strict rules to safeguard European values” and Article 1 of the DSA directly states: “Everyone has the right to freedom of expression”.
Behind this liberal facade, however, the exact opposite is happening: an attack is taking place against the constitutional order. Due to the complexity of the matter and the sheer volume of information available, its introduction is going unnoticed. The DSA opens up the possibility of [EU or national authorities] demanding the removal of entries that are not unlawful from very large online platforms and search engines…
Platform operators are required to “pay particular attention to how their services could be used to disseminate or amplify misleading or deceptive content, including disinformation.” (Recital 84). In addition, Art. 34 of the DSA makes a clear distinction between unlawful information and information with only “detrimental effects”.
However, the term “disinformation” is not defined in the DSA. But in 2018 the EU Commission did define it as including information that can cause “public harm”. In doing so, it determined (p.4) that public harm is to be understood as “threats to democratic political processes and political decision-making as well as to public goods such as the protection of health, the environment and security”.
There can be no doubt that false, misleading or just inconvenient entries need not be unlawful. Nevertheless, they can be declared unlawful at any time on the basis of the DSA. The EU Commission sets the standard by which disinformation is judged. However, this means that politically unsavoury opinions, even scientifically argued positions, can be deleted, and not only that: if it is classified as unlawful, there are social consequences.
One inevitable result is that citizens begin self-censoring to align their messages on the platforms with what is currently acceptable within the corridors of power…. The cornerstone of any free society — the perpetual exchange of intellectual and political ideas, even with opposing opinions — will therefore crumble.
Another layer of censorship comes in from the fact that the major platforms will have to analyse entries for “systemic risks” they may pose, evaluate them accordingly and then take “risk mitigation measures”. Systemic risks are deemed to exist if there are “likely (or foreseeable) adverse effects” on “social debate”, “public safety” or “public health”. Such entries must be deleted or blocked.
From Covert to Overt
We have already seen this sort of thing play out in the US, but in a broadly covert manner. As the Twitter Files disclosures showed, federal law enforcement and intelligence agencies helped to curtail, block and shadow-ban government-threatening lines of thought, such as suspicion and hostility toward vaccine mandates and interest in the Hunter Biden laptop, both of which have been well vindicated. Thanks to the EU’s Digital Services Act, the online censorship is about to become overt and legally permissible.
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Nick Corbishley 