It has been reported that Elon Musk is considering blocking Europeans from accessing X(Twitter) due to the recently enacted Digital Services Act (DSA).  Perhaps Mr. Musk has been affected by the demands made for compliance by Thierry Breton, the EU commissioner that has written threatening letters to X and other social media companies demanding action in relation to posts about the Israeli/Palestinian conflict, as discussed in previous posts on this site.

I have yet to see any direct communication from Mr. Musk on this subject, so it would be wise to wait to see exactly what he plans to do.  Is  his threat to pull X out of Europe a bluff to get the EU to back off?  Will he eventually accept compliance with the demands under the DSA?  Will he fight the more troubling aspects of the DSA in the European Court of Justice (ECJ) arguing that such are not compatible with freedom of expression and information under Article 11 of the EU Charter of Fundamental Rights.

I, for one, would like to see Mr. Musk challenge the DSA in court.  It would be better for all concerned if the DSA were at least reconciled with Article 11.  For example, significant portions of the DSA are designed to curtail “disinformation.”  However, the DSA fails to provide any sort of comprehensive definition as to what it means by disinformation. The closest it comes to a definition is giving an example “such as the use of bots or fake accounts for the creation of intentionally inaccurate or misleading information, sometimes with the purpose of obtaining economic gain, which are particularly harmful for vulnerable recipients of the service, such as minors.”  But this example does not purport to be a inclusive list of what comes under the rubric of disinformation.  Based on Mr. Breton’s letters I suspect that many within the EU interpret disinformation quite broadly

The DSA also seeks to address “illegal content” posted by online platforms, but it at least tries to define this, stating that such should “broadly reflect the existing rules in the offline environment.”  It gives examples of hate speech, terrorist content, discriminatory content, child pornography, etc. 

But the disinformation aspect of the DSA is particularly troubling, and raises many profound questions.  Does the EU really want to hold everyone who posts on the Internet to some sort of standard of accuracy?  Who is to define this standard?  Are Internet platforms to be required to fact-check all postings submitted by their users? How will platforms be expected to do this given the enormous volume of information posted on the Internet?  Will software filters and AI ultimately be required to police what is allowed on the Internet?  Do we really want AI telling humans what is allowed on the Internet?  Will the EU put itself in the role as the ultimate arbiter of what is and isn’t sufficiently accurate?  What about posting of information that isn’t easily verifiable?  Does freedom of expression include the right to post information that is unintentionally incorrect?  Does freedom of expression allow posting of intentionally inaccurate information when it is not defamatory?  What about postings that are sarcastic or parodies? 

Perhaps if the European Court of Justice gets a case challenging the DSA some of these questions can be answered.