The takeover of Twitter by Elon Musk put the DSA to the check

Faced with restrictions on opinion, Elon Musk is buying Twitter to make it a space of greater freedom, just at a time when Europe is imposing restrictions on freedom of expression on platforms.

Elon Musk bought Twitter on April 26 for a staggering $ 44 billion.

In recent years, Twitter has largely stood out by daily censorship of hate content, racism, or deleting accounts like that of Donald Trump on January 9, 2021.

This restriction on freedom of expression, which is fundamental in the United States, was explained in the TOS on Twitter: “attack or threaten other people or incite violence against them based on race, ethnicity, national origin, caste, sexual orientation, gender, gender identity , religious affiliation, age, disability or serious illness ”.

Driven by the desire to protect freedom of expression, Elon Musk wants to give new impetus to the social network and make it the right place to exchange different opinions.

However, this one will have to deal with a legislative framework that is much more important than today.

Indeed, on Saturday, April 23, the member states of the European Union, the European Parliament and the Council of Europe reached an agreement promising a more significant restriction on the sharing of hate content and thus freedom of expression: the Digital Services Act (DSA).

Application of the Law on Digital Services

This new law will generally enter into force on January 1, 2024.

This will enable a new policy in the fight against hate content, child pornography, fraud, sharing images without consent, apologies for terrorism, sale of counterfeits or copyright infringement.

It will also enable the fight against misinformation, especially in times of crisis. Where, for example, a good deal of information circulates in the wrong ways to mislead users. As was the case, for example, in Ukraine where disinformation on Twitter was widespread.

In particular, new funds will be allocated to allow users to report this type of content directly. Once this report has been generated, the platform must remove this content. The platforms will have to cooperate with “trusted flags”, bodies, associations marked within each state, which will have priority in informing about illegal content. The state truth is, therefore, slowly being implemented.

As for sanctions, they will be proportional to the scale of the platform, which will be faced with some of the strictest rules that require careful moderation. The sanction of the European Union can reach 6% of the world turnover, or even exclusion from the platform on the territory of the European Union in case of a repeated violation.

Towards true freedom of expression?

In this context, did Elon Musk really invest in a timely manner?

Elon Musk wants to modify the social network in three points:

  • Using the social network to develop one’s own companies like Tesla, or continuing on one’s own network, for which it has been criticized on several occasions, manipulating the market, especially cryptocurrencies;
  • Make the social network attractive in order to make it profitable, which is not the case today;
  • Create a space of free expression, where everyone can express themselves as they wish.

It is at this last point that the challenge will be real.

In the United States, (absolute) freedom of speech is guaranteed by the 1st Amendment. It is absolutely, totally, immutable. We Europeans are often shocked by the extent of this complete freedom of expression that allows for the existence of a Nazi party or even the impossibility of concrete protection of private life by legal means (as this would mean restricting freedom of the press or expression). The First Amendment only prohibits the legislator from restricting freedom of expression, but the Terms and Conditions can perfectly restrict it on the social network. In Europe, the legal mentality is different because it is the legislator who authorizes and prohibits. Despite the promises of human rights, there is no absolute, total and unchangeable right or freedom in Europe.

This implies that, although Musk may choose a more liberal policy in the United States, he will still have to obey the DSA legislation in Europe. And it is a safe bet that, given the European Union’s even stronger embrace with its new weapons, freedom of expression will be hit hard on Twitter, more than it is today. This, while the financial future of Twitter could be darkened in the case of sanctions, although the company is currently not profitable, if the founder of Tesla decides to follow his ideas.

The responsibility of the platforms within the DSA will be much greater. We wonder if the Twitter management, led by Bret Taylor and Parago Agrawal, did not just make the sale in time, feeling that the management of this social network will become more and more complex within the market, the European one.

Elon Musk’s projects are therefore completely contrary to the grain of European Union policy and, moreover, while European Commissioner Thierry Breton, the initiator of the DSA, already has a new Twitter owner on target and wants to make him an example of the DSA’s strike force …

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