Iolanda Rodrigues de Brito (PhD, Lecturer at the Ius Gentium Conimbrigae – Human Rights Centre)
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Disinformation about the Israel-Hamas conflict is flooding social networks, creating an increased risk of escalating the war.[1] Over the past few weeks, the European Commission has rushed to urge social media platforms to comply with the Digital Services Act (DSA), which came into force on 16 November 2022.[2] According to the European Commission, the DSA “sets out an unprecedented new standard for the accountability of online platforms regarding disinformation, illegal content, such as illegal hate speech, and other societal risks” and it “includes overarching principles and robust guarantees for freedom of expression and other users’ rights”.[3]
On 25 April 2023, the Commission had designated 19 very large online platforms and very large online search engines on the ground of their number of users being above 45 million or 10% of the European Union (EU) population. These services need to comply with the full set of provisions introduced by the DSA since the end of August 2023.[4] Although the new regulation will only be generally applicable from 17 February 2024, its applicability has been anticipated in relation to very large online search engines and very large online platforms, such as social networks (article 92 of the DSA).
However, the latest threats to European democracies are so serious that they led the Internal Market Commissioner, Thierry Breton, to take exceptional measures. In his speech of 18 October 2023, before the European Parliament, the Commissioner was clear: “The current situation has shown the need for a coordinated approach between Member States and the Commission. We can’t wait until 17 February 2024, when the European Digital Services Board will be set up, to talk to each other and work together. That’s why, at my initiative, the Commission today adopted a recommendation to Member States to anticipate the implementation of the future DSA governance system and be more effective together”.
Recalling that we are now at a turning point, the Commissioner Thierry Breton emphasized the EU’s mission: “to protect our citizens, defend our values and ensure that the digital space remains a place of freedom, expression and security. We cannot and must not let terror and disinformation divide us or undermine our democracy. Together, with determination and solidarity, we will overcome these challenges.”[5]
Non-European social networks blow new harsh winds over the European public sphere
As soon as Elon Musk acquired Twitter, an immediate change in the winds blowing over Europe was noticeable. The billionaire’s intention to remove limits on content that can be posted online was well explained in a tweet he published shortly afterwards: “The bird is freed”. Immediately, the Commissioner Thierry Breton responded: “In Europe, the bird will fly by our rules.” However, later, the bird stopped flying because Musk replaced it by an “X”.
In December 2022, the EU and the United Nations have condemned Twitter’s decision to suspend several journalists (including reporters for The New York Times, Washington Post and CNN, whose accounts were taken down) covering the platform and its new owner, warning of a “dangerous precedent”.[6] Elon Musk’s unlimited conception of freedom of expression does not recognise, due to its absolute nature, freedom of expression for everyone, nor does it recognise freedom of the press for all journalists.
Since the beginning of the war between Hamas and Israel, social networks, including Meta and TikTok, have been flooded with false content, but X seems to be the one that raises the greatest concern, considering its owner’s unlimited concept of freedom of expression, as well as the fact that its content moderation team has ceased to exist.[7]
The Commissioner Thierry Breton sent letters to the owners of Meta, X and TikTok, reminding their obligations to combat disinformation under the DSA and giving them 24 hours to inform him of measures taken to counter the spread of disinformation on their platforms. In response, Musk said: “Our policy is that everything is open and transparent, an approach that I know the EU supports”. And then added: “Please list the violations you allude to on X, so that the public can see them.”[8]
On 12 October 2023, following allegations of spreading of illegal content and disinformation, in particular terrorist and violent content and hate speech, the European Commission services formally sent X, as a very large online platform, a request for information under the DSA, considering the need to comply with its provisions. The Commission services are investigating X’s compliance with the DSA, including its policies and actions regarding notices on illegal content, complaint handling, risk assessment and measures to mitigate the risks identified.[9]
If these challenging attitudes worsen, the EU must be prepared to face situations of strategic non-compliance with its regulations, which could even be imitated by other powerful international actors with the most unpredictable intentions.
The first resilience test to the DSA
In his mentioned speech of 18 October 2023 before the European Parliament, the Commissioner Breton insisted: “By pointing out the responsibility of platforms – and their CEOs – in the management (or lack of management) of illegal content distributed on their platforms, we are sending out a very explicit signal: things have changed in Europe. There is a law. It must be respected. And let me be very clear: the way in which the platforms respond to the Commission’s questions will be included in our files on their compliance with their obligations under the DSA”.[10]
The DSA establishes a range of legal obligations, such as fast removal of illegal content, improved complaint mechanisms against content removal and greater transparency regarding content moderation, prohibition of the use of misleading or confusing interfaces that aim to manipulate users’ choices, greater transparency and responsibility concerning online advertising, prohibition of targeted advertising based on sensitive personal data, increased transparency and algorithmic accountability, obligation to provide an alternative recommendation system not based on user profiles on very large platforms and obligations to assess systemic risks, such as disinformation, and to mitigate those risks.
The importance of this new regulation is indisputable, representing another courageous step taken by the EU in defending European values. As the Commissioner Breton underlined in his speech: “With the DSA, we have a complete toolbox that we must make full use of to achieve our goal: to ensure that online security is guaranteed and fundamental rights are fully protected.”[11]
Nevertheless, we live in very challenging times and the EU must prepare itself even for the unlikely. The effectiveness of this new regulation is based on the conviction that the economic consequences arising from a hypothetical violation of the rules are sufficiently deterrent to non-compliance. This approach appears to be working with most platforms, including Meta. However, some facts indicate that it is increasingly necessary to safeguard the risk that the EU may be confronted with new strategies carried out by some large technology companies, which, due to the extraordinary economic power of their owners, are capable of bearing the cost of the violation of European rules. At the same time, some players may decide that it is feasible, for unpredictable reasons, not to comply with European regulations. For all these reasons, the EU needs to reflect on the need for a plan B aimed at protecting the European “marketplace of ideas”[12] in case the unthinkable happens.
The pressing need to protect the European “marketplace of ideas” as an essential condition to ensure a democratic future in Europe
Freedom of expression constitutes one of the structuring pillars of a democracy. To guarantee the resistance of this right when confronted with other paramount rights, Jónatas Machado has long highlighted the need to adopt a multifunctional approach, in order to include in its purposes the search for truth, the creation of a free marketplace of ideas, democratic self-determination, the control of governmental activity and the exercise of power, the preservation of a broad, open and fluid sphere of public discourse, the free formation of public opinion, the guarantee of diversity of opinions, the peaceful transformation of society and the promotion and expression of individual autonomy.[13]
Disinformation constitutes one of the most serious threats to the preservation of European democracies.[14] Although it does not consist of an unprecedented strategy in history, the truth is that it is an original phenomenon given the existence of new means that allow the contamination of the “marketplace of ideas” through the rapid infiltration of an unlimited number of falsehoods. The proper functioning of the marketplace is compromised because it is no longer possible to purge mass-produced falsehoods through rational debate between different points of view based on the presentation of arguments and counterarguments.[15] The mass production of disinformation and its rapid dissemination through social networks triggers the serious risk of deforming public opinion, as well as manipulating citizens’ voting intentions in democratic elections.
As enshrined in the Charter of Fundamental Rights of the European Union (CFREU), the EU is conscious of its spiritual and moral heritage and the “peoples of Europe” are “resolved to share a peaceful future based on common values”. In order for this future to be democratic, it is essential to ensure that everything is done to protect the European “marketplace of ideas”, as well as the freedom of the press and the right of citizens to receive truthful information on matters of public concern.
Conclusion
As the President of the European Commission, Ursula Von der Leyen, recently highlighted, the history of Europe continues to be written.[16] And the truth is that there are many lines to write the future of the “Peoples of Europe”. The threats to European cohesion, arising from the risk of manipulating public opinion through disinformation, require the EU not only to have a(n) (existing) solid regulatory strategy to defend European values, but also to provide exceptional legal security mechanisms in the event that any important player in the digital ecosystem considers it viable, from the point of view of their interests, to systematically violate European regulations, namely because of their ability to bear the price of non-compliance or because of their belief that it is possible to avoid its consequences.
[1] See Sophia Khatsenkova, “Fake social media accounts used to spread disinformation after the Gaza hospital blast”, Euronews, 20 October 2023, available at: https://www.euronews.com/my-europe/2023 /10/20/fake-social-media-accounts-used-to-spread-disinformation-after-the-gaza-hospital-blast.
[2] This new regulation aims to “contribute to the proper functioning of the internal market for intermediary services by setting out harmonised rules for a safe, predictable and trusted online environment that facilitates innovation and in which fundamental rights enshrined in the Charter, including the principle of consumer protection, are effectively protected” [Article 1 (1) of the DSA].
[3] See European Commission, “The Commission sends request for information to X under the Digital Services Act”, 12 October 2023, available at: https://ec.europa.eu/commission/presscorner/detail/en/ ip_23_4953. In relation to this new regulation, see, for a brief reading, Inês Neves, “From the Digital Services package to the Digital Markets Act: the road to a (more) secure, open, and fundamental rights-friendly digital space”, The Official Blog of UNIO – Thinking and Debating Europe, 4 May 2023, available at: https://officialblogofunio.com/2023/05/04/from-the-digital-services-package-to-the-digital-markets-act-the-road-to-a-more-secure-open-and-fundamental-rights-friendly-digital-space/; for in-depth reading, Luís Menezes Leitão, Digital Services Act (DSA) (Coimbra: Almedina, 2023).
[4] See European Commission, “The Commission sends request for information to X under the Digital Services Act”, 12 October 2023, available at: https://ec.europa.eu/commission/presscorner/detail/en/ ip_23_4953.
[5] See European Commission, “Fighting disinformation and dissemination of illegal content in the context of the Digital Services Act and in times of conflict – Speech by Commissioner Breton”, 18 October 2023, available at: https://ec.europa.eu/commission/presscorner/detail/en/speech_23_5126.
[6] See Euronews, AP & Reuters, “UN condemns Twitter’s decision to suspend journalists’ accounts as EU threatens sanctions”, Euronews.next, 16 December 2022, available at: https://www.euronews.com/ next/2022/12/16/twitter-suspends-the-accounts-of-several-journalists-who-wrote-about-elon-musk.
[7] See Associated Press, “Elon Musk’s X removes thousands of Israel-Hamas misinformation accounts and posts amid EU demand”, Euronews.next, 12 October 2023, available at: https://www.euronews.com /next/2023/10/12/elon-musks-x-removes-thousands-of-israel-hamas-misinformation-accounts-and-posts-amid-eu-d.
[8] See James Gregory, “EU opens investigation into X over alleged disinformation”, BBC, 13 October 2023, available at: https://www.bbc.com/news/technology-67097020.
[9] See European Commission, “The Commission sends request for information to X under the Digital Services Act”, 12 October 2023, available at: https://ec.europa.eu/commission/presscorner/ detail/en/ip_23_4953.
[10] See European Commission, “Fighting disinformation and dissemination of illegal content in the context of the Digital Services Act and in times of conflict – Speech by Commissioner Breton”, 18 October 2023, available at: https://ec.europa.eu/commission/presscorner/detail/en/speech_23_5126.
[11] See European Commission, “Fighting disinformation and dissemination of illegal content in the context of the Digital Services Act and in times of conflict – Speech by Commissioner Breton”, 18 October 2023, available at: https://ec.europa.eu/commission/presscorner/detail/en/speech_23_5126.
[12] About the “marketplace of ideas”, see, for example, Jill Gordon, “John Stuart Mill and the ‘marketplace of ideas’”, Social Theory and Practice, vol. 23, no. 2 (1997): 235–49. JSTOR. Available at: http://www.jstor.org/stable/23559183.
[13] See Jónatas E. M. Machado, Liberdade de Expressão: Dimensões Constitucionais da Esfera Pública no Sistema Social, (Coimbra: Coimbra Editora, 2002), 237-291.
[14] According to the Council of Europe, there are three types of “information disorder”: “disinformation” as “information that is false and deliberately created to harm a person, social group, organization or country”; “misinformation” as “information that is false, but not created with the intention of causing harm”; and “malinformation” as “information that is based on reality, used to inflict harm on a person, organization or country”. See Claire Wardle and Hossein Derakhshan, Information Disorder: Toward an Interdisciplinary Framework for Research and Policy Making, Council of Europe report DGI (2017)09, Strasbourg: Council of Europe, 2017, 20. Available at: https://rm.coe.int/information-disorder-toward-an-interdisciplinary-framework-for-researc/168076277c.
[15] About the manipulation of the public sphere, see also Jónatas E. M. Machado and Iolanda Rodrigues de Brito, “Liberdade de expressão, informações falsas e figuras públicas: o perigo de manipulação da esfera de discurso público”, Boletim da Faculdade de Direito, vol. 95, no.1 (2019): 65-72.
[16] See European Commission, “2023 State of the Union Address by President von der Leyen”, 13 September 2023, available at: https://ec.europa.eu/commission/presscorner/detail/ov/speech_23_4426; Editorial Team, «“Answering the call of history” – on the 2023 “State of the Union” speech (SOTEU) by President Ursula von der Leyen», Editorial of October 2023, 13 October 2023, The Official Blog of UNIO – Thinking & Debating Europe, available at: https://officialblogofunio.com/2023/10/13/editorial-of-october-2023/#more-6060.
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