Not Only the DSA: Systemic Threats to Freedom of Speech and the Integrity of Democratic Elections in the EU

The U.S. House Judiciary Committee report titled “The Foreign Censorship Threat, Part II: Europe’s Decade-Long Campaign to Censor the Global Internet and How it Harms American Speech in the United States” was definitely a watershed moment. By bringing to a wider public the evidence of the EU’s pressure on online service providers and, even more importantly, calling it by its real name, i.e., censorship, it galvanized the advocates of freedom of speech and gave a fresh impulse for even more robust engagement in its protection on both the national and European levels. The aim of this analysis is to supplement the Committee’s factual findings by providing the broader legal background for this report.

As is demonstrated in our legal analysis, in light of the regulations and soft law provisions adopted by the EU, the examples demonstrated in the report, shocking as they may be, should not come as a surprise. These provisions prove that the EU decided to take unprecedented steps in order to limit the freedom of speech on the European internet. In fact, one could even call it organized lawfare against online freedom of expression. What is even more disconcerting is that EU institutions are not even trying to hide this fact. This legislative offensive and its goals are fully described in the Commission’s Communication on the European Democracy Shield, explaining in detail the goals and synergies between the EU acts regulating the EU digital marketplace.

The goal is to create a “safe and stable online environment” where EU citizens would be protected not only against directly harmful messages, such as pornography or those with violent content, but also against political speech diverging from the leftist-liberal orthodoxy. In particular, online service providers are expected to actively engage in fighting “hate speech,” “disinformation,” and other “divisive” or “discriminatory” content. The European Commission makes it clear that the achievement of these goals requires the creation of a multi-layered censorship framework. Not only are online service providers requested to introduce robust notice and takedown mechanisms, but they also have to label their users’ speech, e.g., as fact-checked, untrustworthy, coming from untrustworthy sources, etc. Furthermore, speech qualified as a “political advertisement” should be expressly labelled as such, together with a lot of financial details. In order to ensure compliance, these censorship activities are to be carried out not only by online service providers, but also by the supervising public authorities and Commission (Member State)-approved NGOs labelled as “fact checkers” or “trusted flaggers.” The whole system clearly favors aggressive moderation rather than the protection of freedom of speech.

Compliance with EU law is to be ensured by draconian penalties against both online service providers and the Member States that would like to tip the balance in favor of the freedom of speech.

The above is even more disconcerting since the limitations on freedom of speech are clearly linked to the electoral process in many of the EU’s documents. The European Commission is not even trying to hide that one of the main goals of these regulations is to limit voter access to political speech contradicting the views of the Commission and predominantly liberal legacy media, to prevent such speech from influencing elections. In practice, this means limiting voters’ exposure to the political speech of conservative parties that challenge the liberal status quo.

Executive summary of the analysis

• The European Democracy Shield is intended to transform the European internet by making it a safe, heavily moderated space, where the dominant liberal views are promoted.
• This creates numerous challenges to the freedom of speech, in particular in its political aspect and, thus, is aimed at influencing elections in the Member States.
• These goals are to be attained mainly by way of a multi-layered moderation (i.e., censorship) process.
• Firstly, the EU demands the creation of a robust notice and takedown framework, whereby the balance should be tipped towards aggressive moderation rather than the preservation of the freedom of speech.
• Secondly, a pervasive system of labelling is to be introduced – speech is to be labelled by external providers as trustworthy or not; separate commentaries should provide information about given speech being fact-checked or likely to be fake news and also should indicate whether it constitutes a political ad or not, among other things.
• Moreover, online service providers should also ensure that the applied algorithms would remove any speech deemed as problematic.
• The scope of the moderated speech is defined very broadly. It concerns not only widely understood “illegal” content, but also speech labelled as “disinformation,” “hate speech” or “divisive speech.”
• Both the set standards and the enforcement process are organized in a deeply undemocratic fashion. The decisive role is given to the Commission’s list of Member-State-approved NGOs cooperating with the competent regulatory authorities.
• Most of the aforesaid regulations are stipulated in the Digital Services Act, accompanied by a plethora of theoretically non-binding acts.
• These regulations are supplemented by severe restrictions on political advertisement, consisting of, most importantly, labelling obligations and severe restrictions on data use and targeting.
• Aggressive enforcement of the European Democracy Shield is secured by severe sanctions for both online service providers and the Member States showing too much leniency.
• Thus, the European Democracy Shield poses a clear and present danger to the freedom of speech and information within the EU, in particular with regard to conservative speech. These limitations aim specifically to influence political discourse in the EU.