"The DSA is Here to Protect Free Speech" - Come Again?

“The #DSA (Digital Services Act) is here to protect free speech against arbitrary decisions.” So said Thierry Breton, EU’s Internal Market Commissioner, in a recent tweet. Given the extraordinary level of discretion this Act gives the European Commission to pressure online platforms to enforce vaguely defined “hate speech” and “disinformation” rules, one might reasonably take issue with Mr Breton’s self-presentation as a guardian of free speech. Indeed, it would be no exaggeration to say that the Digital Services Act is the single greatest threat to free speech in Europe since the formation of the European Economic Community in 1957.

Even a cursory review of this cumbersome piece of legislation makes it difficult to take Mr Breton seriously when he claims to be protecting free speech. Is it possible that Thierry Breton, one of the primary promotors of the Digital Services Act, is not aware that an army of “trusted flaggers” in the employ of the European Commission, combined with annual audits to control for “systemic risks” like “disinformation” and “hate speech,” will likely open the door to unprecedented levels of political and scientific censorship and to a progressive shrinking of the space of legally permissible speech on the internet in Europe?

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Surely it is more likely that Mr Breton knows full well that he is shrinking free speech, but is happy to do so to advance his favourite causes and stop political opposition to the Commission’s policies before it even sees the light of day. Like most political tyrants, Mr Breton knows that the language of freedom is music to the ears of citizens of modern democracies, and is happy to present himself as the Great Liberator, even while depriving his political adversaries of oxygen in the public square.

The truth about the Digital Services Act - a truth that is given a vanishingly small amount of coverage in mainstream media - is that it gives the European Commission power to demand censorship of online content by Big Tech platforms based on inherently vague and fluffy categories like “disinformation” and “hate speech.” And inherently vague and fluffy grounds for censorship are notoriously open to political and ideological manipulation. The end result is that legitimate public commentary deemed false, misleading, “hateful” or a threat to “civic discourse” by the political actors populating the European Commission, or their small army of “trusted flaggers,” may be swiftly neutralised.

The DSA creates an army of “trusted flaggers” who can advise social media to take down content. If social media companies ignore this advice, they will open themselves up to reproach by the European Commission for failing to take steps to manage the “systemic risks” of “disinformation” and “hate speech.” Non-compliance could be penalised with massive fines of up to 6% of annual global turnover. So these periodic audits are no joke.

The end result of all of this is that ordinary social media users and independent journalists will effectively be censored not only by the internal policies of private social media companies, but also by faceless bureaucrats and NGOs, whether the “trusted flaggers” continuously flagging up what they think is “illegal content,” or the auditors undertaking periodic reviews on behalf of the European Commission. There will, of course, be the possibility of appealing a censorship decision. But if anyone has been at the brunt of Big Tech censorship in the past, they will understand that appealing a censorship decision is a shot in the dark, often with a very low likelihood of success.

The Digital Services Act will inevitably have a chilling effect on free speech because Big Tech platforms would prefer to play along with the Commission than risk paying billions in fines, and many ordinary users would prefer to preserve their access to the public sphere than risk getting censored or eventually having their accounts suspended.

Finally, it is worth underlining that the DSA directly contravenes Article 11 of the European Charter of Fundamental Rights and Article 10 of the European Convention on Human Rights, which protect EU citizens’ “freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.”

And yet the EU’s Internal Market Commissioner has the gall to claim that the DSA “protects free speech.” He must really take us for idiots.

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