ARTICLE 19, Access Now and the Electronic Frontier Foundation (EFF) have written to European Commissioner Thierry Breton urging him to ensure that the enforcement of the Digital Services Act (DSA) be guided by evidence, not political sentiment. The organisations also emphasised the need for human rights-based enforcement that considers the effects of the DSA outside European Union borders.
On 12 August 2024, Thierry Breton, the European Commissioner for Internal Market and Services, sent a letter to X raising his concerns about the spread of ‘harmful content’ accessible to users in the EU in connection with far-right riots in the UK. He also raised concerns about the conversation between the US presidential candidate Donald Trump and X owner Elon Musk, which was live-streamed hours after the letter was posted on X. The letter warned X that the EU Commission was closely monitoring the situation, and that any dissemination of speech which could “incite violence, hate and racism” could be used in the already-ongoing infringement proceedings against X under the DSA.
Barbora Bukovská, Senior Director for Law and Policy at ARTICLE 19 commented:
“The Digital Services Act must not become a tool for politically-driven interventions. Its enforcement should be based on evidence and uphold users’ fundamental rights, including freedom of expression. Any suggestion that making highly newsworthy content – such as an interview with a former U.S president and a major candidate in the upcoming presidential election – accessible to EU users could conflict with the DSA, is deeply problematic.”
Events that take place outside the EU may lead to serious negative consequences for those within the EU. Yet, the Commissioner’s letter neither specifies whether or how the events in the UK have reached the threshold of systemic risks within the EU nor explains why a broadcast of an interview with a US presidential candidate on X requires “effective mitigation measures” in the EU. It is further entirely unclear what ex-ante measures a Very Large Online Platform (VLOP) should take to address a future speech event without resorting to general monitoring and disproportionate content restrictions.
Eliška Pírková, Senior Policy Analyst and Global Freedom of Expression Lead at Access Now commented:
“Commissioner Breton will do well to remember that the Digital Services Act is enforced and guided by evidence rather than political sentiment, Under no circumstances should the Digital Services Act be used as a political tool to impose disproportionate content restrictions against online platforms, especially during politically sensitive times.”
As in previous instances, Commissioner Breton’s letter conflates illegal content with other types of ‘harmful content’ that is not necessarily illegal. However, the DSA, like international freedom of expression standards, does make a distinction between these categories of content. We encourage the EU Commission to follow the letter and spirit of the DSA and focus on whether VLOPs adequately assess systemic risks stemming from their systems and processes rather rather than demanding content-specific restrictions.
Christoph Schmon, International Policy Director at EFF commented:
“Breton’s letter raises concerns that the Digital Services Act could be used by EU regulators as a global censorship tool rather than addressing societal risks in the EU. The DSA deserves enforcement that prioritizes human rights, not one that pressures online platforms to monitor user speech and proactively restrict content.”
The Commissioner’s letter highlights the ongoing lack of clarity regarding the concept of systemic risks under the DSA. In our letter, we urge the EU Commission to provide more clarity on their understanding of systemic risks and to issue according guidance as foreseen by Article 34(1) of the DSA.