By Irene Castro and Carlos del Castillo

The spread of fake news and disinformation was one of the major issues facing the European Union during the last legislative period, when new legislation was introduced to regulate online life. The intention of the Digital Services Act (DSA) and the Digital Markets Act (DSA) is to make illegal offline conduct also illegal online and to put a stop to the misdeeds of the large platforms, which face multi-million euro fines for non-compliance with the rules. However, as soon as the new mandate of the European Commission began, it has faced a challenge from the two main magnates of the sector : Elon Musk and Mark Zuckerberg. The issue deeply worries most European governments, but the capacity to respond is limited.

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Freedom of expression or interference?

The European authorities have practically no power to act in relation to the tycoon’s support for extremist forces such as Alternative for Germany, because he is protected by freedom of expression. “Elon Musk as a person, like any of us, has the right to freedom of expression and, therefore, can say things that we dislike very much and with which we strongly disagree. The important thing is, for those of us who disagree, to explain why what he says is incorrect or false, incites hatred, etc.,” explains Jordi Calvet-Bademunt, principal investigator at The Future of Free Speech (Vanderbilt University).

He also does not consider that there is foreign interference as such because he is the owner of X and compares it with the support that British media such as The Economist or The Guardian expressed for Kamala Harris in the American elections. And what about the fact that he is one of the main advisors to President-elect Donald Trump? “It is not unusual for politicians from another country to express their opinion on the politics of another country. Again, we can strongly disagree with Musk’s positions, but that does not prevent him from expressing his support for one candidate or another,” he explains.

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Among the “systemic risks” that the European Commission is analysing within the framework of the DSA is the promotion of certain discourses or accounts – potentially including Musk himself – over others. But this control also raises doubts. What EU sources maintain is that the promotion of certain accounts can be beneficial at certain times, such as for example in reporting on natural disasters. “There is no rule that says that accounts cannot be promoted. The architecture of the DSA is that promoting an account through a recommendation system must be considered as an additional risk factor,” these sources say.

“It is a very recent regulation with highly vague terms regarding systemic risks that nobody knows how to interpret: the Commission does not know, companies do not know and civil society does not know either,” says Calvet-Bademunt, pointing to the ongoing debate on the matter, which he describes as “a catch-all category for everything we want for our society”: “We want platforms to fight against the dissemination of illegal content, to protect our elections, but we also want them to protect freedom of expression. That is where the problems arise, how we should interpret these systemic risk obligations and what they imply for X.”

The researcher at The Future of Free Speech believes that curbing the promotion of far-right narratives now could set a dangerous precedent if, at some point, the far-right gains control of the European Commission and is responsible for enforcing the rules. “Promoting a type of content that is more right-wing or left-wing should not lead to sanctions. And the reason we give for this is precisely that what one person applies today can be applied tomorrow by a far-right or far-left politician who worries the opposite side,” he argues.

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Publicly, the European Commission, which is awaiting Donald Trump’s inauguration to see how he articulates the relationship with the new tenant of the White House who brought the European leadership to its knees during his previous term, has been very cautious in its response to both Musk and Zuckerberg’s following him. However, the Vice President of the European Commission for Technological Sovereignty, Security and Democracy, Henna Virkkunen, and the Commissioner for Justice, Michael McGrath, committed themselves in a letter sent to the MEPs in the area to “vigorously” promote an investigation into whether Elon Musk’s social network X infringed the law on content moderation, according to Bloomberg .

The EU’s ability to do so is essentially based on the imposition of multi-million euro fines for non-compliance with the rules. Fines can reach 6% of companies’ global turnover. The issue has sparked a deep debate and some are suggesting that platforms be blocked for interference or non-compliance with the rules, but this is a highly unlikely scenario. “Shutting down platforms under the Digital Services Act is something extremely rare, exceptional, and must be justified under very specific circumstances,” says Calvet-Bademunt, who sees this possibility as “very low.”

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Jordi Calvet-Bademunt is a Research Fellow at The Future of Free Speech and a Visiting Scholar at Vanderbilt University. His research focuses on free speech in the digital space.