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

Faced with the limitations of opinion, Elon Musk buys Twitter to make it a space of greater freedom, at the very time when Europe imposes restrictions on freedom of expression on platforms.

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

In recent years, Twitter has mainly distinguished itself by daily censorship against hateful, racist content, or by the deletion of accounts like that of Donald Trump on January 9, 2021.

This limitation on freedom of expression, which is fundamental in the US, is explained in Twitter’s TOS: “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 a real place to share various opinions.

Nevertheless, this one will have to deal with a legislative framework 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 which promises to limit more significantly the sharing of hateful content and therefore the freedom expression: the Digital Service Act (DSA).

Application of the Digital Service Act

This new legislation will mainly come into force on January 1, 2024.

It will allow a new policy in the fight against hateful content, child pornography, scams, the sharing of images without consent, the apology of terrorism, the sale of counterfeits or the violation of copyright.

It will also make it possible to fight against misinformation, particularly in times of crisis. Where, for example, a lot of information circulates in erroneous ways to mislead users. As was the case for example in Ukraine where disinformation on Twitter was widely relayed.

Concretely, new means will be allocated to allow users to report this type of content directly. Once this report has been made, the platform must remove this content. The platforms will have to collaborate with “trusted flaggers”, bodies, associations labeled within each State, which will have priority for notifying illegal content. A state truth is therefore slowly being implemented.

Regarding the sanctions, they will be proportional to the scale of the platform which will be faced with some of the strictest rules, requiring careful moderation. A sanction by the European Union may reach 6% of worldwide turnover, or even exclusion from the platform on European Union territory in the event of a repeat offence.

Towards real freedom of expression?

In this context, did Elon Musk really make a timely investment?

Elon Musk wants to change the social network on three points:

  • Using the social network to grow its own companies like Tesla, or continuing to do on its network, for which it has been criticized on several occasions, market manipulation, especially with cryptocurrencies;
  • Make the social network attractive so that it becomes profitable, which is not the case today;
  • Create a space of free expression, where everyone can express themselves as they wish.

It is on 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 absolute, total, immutable. We Europeans are often shocked by the extent of this total freedom of expression which allows the existence of a Nazi party or even the impossibility of concretely protecting privacy by legal means (since it would suppose a limitation of freedom of the press or of expression). The 1st amendment only prohibits the legislator from limiting freedom of expression, but T&Cs can perfectly limit it on a social network. In Europe, the legal mentality is different since it is the legislator who authorizes and prohibits. Despite the promises of Human Rights, there is no absolute, total and immutable right or freedom in Europe.

This implies that, while Musk may choose a more liberal policy in the United States, he will still have to submit to the DSA legislation in Europe. And it’s a safe bet that, given the even stronger embrace of the European Union with its new weapon, freedom of expression will be strongly impacted on Twitter, more than it already is today. today. This, while the financial future of Twitter could darken in the event of sanctions, even though the company is not profitable at present, if the founder of Tesla decides to go after his ideas.

The responsibility of the platforms under the DSA will be much greater. One wonders if the management of Twitter, led by Bret Taylor and Parag Agrawal, did not just make a timely sale, sensing that the management of this social network will become more and more complex within the market. European.

Elon Musk’s projects are therefore totally against the grain of European Union policy and moreover, while the European Commissioner, Thierry Breton, initiator of the DSA, already has the new owner of Twitter in the crosshairs, and wants to make it an example of the DSA’s strike force…

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