Earlier this month, the European Union brought its first charges under the Digital Services Act against X (formerly Twitter), claiming it deceives users and lacks transparency measures required by the law. Another probe by EU regulators of the platform claims X has refused to comply with an EU law that would force the company to remove posts that EU regulatory authorities declared were misinformation or disinformation.
At issue is Europe’s desire to prohibit certain “inappropriate” speech on X in order to “protect” the European populace from the supposedly devastating consequences of so-called misinformation and disinformation. As one top EU bureaucrat puts it, X is the most significant purveyor of “fake news” among U.S.-based social media companies, and it is not doing enough to reduce harmful content on its platform. The Washington Post has reported that X in particular is complacent—and hence complicit—in allowing the spread of supposed disinformation about the war in Gaza.
The roots of this rhetorical conflict lie in provisions of the 2022 European Digital Services Act. Under the aegis of the Act, the EU instituted a Code of Practice on Disinformation designed to block false information allegedly from the Russian Kremlin aimed at interfering in elections, calling into question establishment narratives, and engaging in other so-called manipulative behaviors.
Google, TikTok, Microsoft, and Meta volunteered to participate in the code, but X refused to do so, dropping out of the program after Musk bought the company. Instead, X seeks to counter misinformation primarily through its “Community Notes” feature, allowing other X users to counter or correct what they believe to be misstatements.
This code has not been voluntary since it formally became part of the Digital Services Act. On that basis, European regulators are now demanding that Musk and X comply by quickly removing content that Europe considers to be hate speech, misinformation or disinformation, and by supplying regular reports confirming how X is reducing the amount of false information on its platform. If X still refuses to play along, it could be banned in Europe. As one European commissioner threatened Musk, “We will be watching what you do.”
Nobody is arguing there are no instances of hate speech or mis/disinformation that should be taken down. However, the delicate balance of content moderation and free speech is one best handled by platforms, not government regulators. We’ve been warning for years that the United States’ and EU’s differing approaches to governing online content were going to clash and have consequences beyond the largest online platforms.
Policy experts have taken note of the regulatory showdown between X and Europe, with some calling it an example of the “Brussels Effect.” The Cato Institute has defined that as “de facto governance norms beyond the borders of the EU.” The Europeans claim to be trying to prevent harm to consumers of American technology, but for the most part, what they are really doing is trying to stamp out viewpoints contrary to what European Union bureaucrats want its citizens to hear.
The George Washington University Law School further argued that the Digital Services Act would skew “global content-moderation policies toward the EU’s instead of the U.S.’s balance of speech harms versus benefits,” thus encouraging other governments around the world to enact laws that similarly would impose substantial penalties on American social media companies for violating aspects of the Digital Services Act or similar legislation.
Fortunately, some American free-speech advocates are resisting what they call Europe’s “discriminatory practices.” For instance, several U.S. pro-business organizations, including the U.S. Chamber of Commerce, last year wrote a letter pointing out that the “EU has openly targeted U.S. companies with a discriminatory digital sovereignty agenda designed to undermine America’s role in the global trading system.”
Such opposing positions lay the foundation for a very unpleasant conflict between the United States and Europe regarding each jurisdiction’s respective regulatory philosophy. Such a situation is not healthy for the future of commercial enterprise in either domain and would be made far worse should the European model be implemented in other states around the world.
But one thing is certain: regardless of the motives or even the transient benefits of the new EU regime, kowtowing to the opponents of free speech leads only to less free speech, which leads only to a less well-informed public, which leads only, step-by-step, to submission to greater government control over people’s lives and, ultimately, to forms of government and government regulation antithetical to those who believe in the ideals of the American free marketplace of ideas.
The EU Digital Services Act is one idea worthy of the strongest civil disobedience.Brent Eastwood is a fellow with the R Street Institute’s technology and innovation team.Kevin Hopkins is the policy director of the R Street Institute’s technology and innovation team.
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