The DSA is the EU’s enforcement arm against online free speech

It is an iron law of administrative bureaucracies that gathering power, staff and budgets is more important than providing service to the public. This is a phenomenon commonly known as “mission creep.”  Yet this self-serving imperative must be shrouded in cheery affirmations of the positive social contributions of the offices in question, lest voters ask if these new powers might curtail their freedoms or increase their taxes. A recent case in point is the European Union’s new regulation of the digital world, widely touted as a means of ensuring “safety and accountability” online.  Who in the European Union would not wish the internet to be purged of child pornography, or that political discussion be rid of Russian bot farms?  

Yet the Digital Services Act, like most EU regulations, lacks a firm limiting principle much less a strong constitutional protection like America’s First Amendment.  EU citizens must simply trust that commission bureaucrats will interpret and apply the new law fairly. But the potential for mission creep is clear: the commission can use the DSA to root out “misinformation,” a nebulous term that could include a disfavoured politician’s rhetorical flourish, or perhaps statements that might embarrass the powerful. Was the lab leak theory of Covid’s origins misinformation, or a plausible theory? Could the DSA have been used to block discussion of it? Likely so.

Can the DSA with its growing staff of EU civil servants be used to monitor and control political speech? While the commission would prefer we not ask, Commissioner Thierry Breton let the cat out of the bag with his recent remarks. Breton warned Elon Musk that his long interview with Donald Trump on X could fall foul of the DSA, opening the X platform to fines even a gazillionaire like Musk would find painful: six per cent of annual turnover.  Apparently the DSA allows the EU the right to intervene in a foreign election and degrade the right of Americans to hear an extended interview with the Republican candidate.  Who knew? Well, any student of administrative bureaucracy, or even any casual reader of recent news.  

While the commission quickly issued a squid-like blast of ink to obscure Breton’s supposed overreach, it did not disavow efforts to regulate the terms of acceptable political speech online. To do so would have abrogated its commitment to “functionalism,” the premise that EU cooperation in one discreet matter will inevitably “spill over” into broader areas, much as the integration of the coal and steel industries ultimately led to the Single Market.

And so in the commission’s view, the DSA may naturally grow (or depending on your view, metastasise) into a broad tool regulating the information EU citizens are allowed to exchange online.  This expansive vision is in accord with the recent moves by Berlin to shut down the right-wing magazine Compact and place the right-wing AfD under formal surveillance as an extremist organization.  When backed by the swingeing fines available under the DSA, governments across the EU may be tempted to classify any inconvenient or unpopular opinion as misinformation. A possibly well-intentioned effort to protect EU citizens from harmful online content may instead become a means of protecting political incumbents from legitimate criticism.  

The temptation to regulate online discourse will be hard for Brussels to resist. Armed with the freedom to exchange opinions unmoderated by the authorities, mere peasants across the EU may begin to ask awkward questions like why they cannot vote out Ursula von der Leyen, or why the Green New Deal appears impervious to the steep losses inflicted on the Green parties in the recent EU Parliament elections, or where exactly all those emergency pandemic funds ended up.

One of the best improvements to X implemented by the commission’s bête noire Elon Musk is the Community Notes, which allow users to correct factual misstatements and call out the hypocrisies floated by public figures.  In Musk’s view, the solution to misinformation is more information, rather than bureaucratic heavy-handedness. But on a continent where the solution to every problem is “more Europe,” a growing enforcement arm attached to the DSM appears to be the answer.  Future European voters may need to ask their teenaged children to hook them up with a robust VPN so they can peruse the full range of inconvenient opinions and make up their own minds.