How could the European Union force Elon Musk to moderate Twitter? – Liberation

Thierry Breton, European Commissioner for the Internal Market, was on RTL on Wednesday April 27 to react to the takeover of the social network Twitter by Elon Musk. The acquisition of the platform by the billionaire does not fail to worry, the man defending total freedom of expression on the platform. Following the criticism, Musk nonetheless claimed he would abide by the law.

Thierry Breton, for his part, was reassuring, explaining that the European Union now had “rules” which help to prevent deviations. And the commissioner to mention the new regulatory framework, “all fresh”since there exists “since last friday” : le Digital Services Act (DSA). “We have the impression that it is concomitant”even rejoiced Thierry Breton.

Even if, in their statements, Thierry Breton and the Secretary of State for digital, Cédric O, may suggest that this legislation is already in force, it will take some time yet. For the moment, the Council and Parliament have agreed on a provisional agreement, on the night of Friday to Saturday 23 April.

The Commission presented its proposal in December 2020. During the European legislative process, representatives of the different Union bodies meet informally in “trilogues” to negotiate a common text. Once this stage is over, lawyers and linguists examine the text before submitting it to Parliament and the Council, which will vote – or not – on its adoption. The deadlines have not yet been set, but the procedure should last several more months. According to the details provided by the Council of the European Union, the rules resulting from the DSA may then apply fifteen months after publication in the Official Journal, but from four months for the players designated as major digital platforms.

The law of the real to the virtual

What is the Digital Services Act? “Anything that is forbidden in real life will also be forbidden in digital life”, summarized Thierry Breton on RTL. The text actually seeks to toughen the conditions of moderation of social networks. For the moment, only a directive of 2000 determines on a European scale the responsibility of digital players vis-à-vis their publications. Either a digital actor is a publisher and is responsible for what he publishes, or he is a host and is only responsible in the event of a complaint. Definitions that were no longer suitable for platforms such as social networks.

With the DSA, it is therefore a question of imposing on digital platforms “obligations of means”, explains the cabinet of Thierry Breton. The draft European regulation does not relate to the definition of the content to be regulated, which is a matter for national laws and other specific European regulations, but to the application, on the Internet, of the obligations already present in existing laws, such as the prohibition of homophobic remarks, incitement to racial hatred… “Depending on the country, Holocaust denial” can be part of the remarks to be deleted, gives for example the cabinet of Thierry Breton.

For Alexandre Lazarègue, a lawyer specializing in digital law, the draft regulation corresponds above all to the “putting responsibility on platforms, in particular social networks”. The more they have a large audience, the stricter the rules concerning them will be. They must first facilitate reporting through a visible tool. Then, after notification, if the remarks made are reprehensible, they will have to withdraw them and communicate to the authorities the information on the author of the offense in the event of prosecution. Each year, they will report to the authorities on the decisions they have taken.

The algorithm will also have to be freely accessible for its part relating to the moderation of content, a novelty which will see the light of day thanks to the Digital Services Act. This device will thus make it possible to know their moderation criteria. “We will have the possibility of auditing them several times a year”assure Thierry Breton.

In France, an already existing regulation

Some countries of the Union being more advanced than others in adapting their laws to the digital field, the DSA is above all intended to harmonize their legislation and constrain the major platforms more broadly. For more equality between member countries, the European Union is also asking digital players to have moderators in each local language.

For France, which was already trying to regulate moderation on digital platforms, this does not change “not much”, explains Alexandre Lazarègue. It already has rules, particularly in the «law of confidence in the digital economywhich had provided for a fairly rigorous system, more than other European states”, adds Lazaregue. Moreover, the law strengthening the principles of the Republic already contains several articles relating to “the fight against hate speech and illegal content online”.

Regulating the comments disseminated on the Internet is however not easy. In 2020, the Avia law had been emptied of many articles challenged by the Constitutional Council. The text demanded strong responsiveness from platforms to delete messages “manifestly unlawful”, at the risk, it was judged, of an over-moderation that could undermine freedom of expression. At European level, a 2021 regulation defines an obligation of results in terms of terrorist content: the words or images reported must be removed within one hour.

Impose greater sanctions thanks to the EU

Thierry Breton also specified to RTL that the European Union will have the capacity to impose sanctions in the event of repeated breaches of the Digital Services Act. He warns that digital companies could be punished first “a fine of up to 6% of global turnover”. For the large platforms, this represents substantial sums, which have not “nothing to see” with the amounts that France was able to inflict on these digital players, underlines Alexandre Lazarègue. The lawyer recalls, however, that the current sanctions climbing up to 4% of global turnover, as provided for in the General Data Protection Regulation (GDPR), adopted in 2021, have not “forces companies to respect this text”. Google has been condemned for its lack of transparency.

This is why Thierry Breton warned on RTL of a last resort: “the ban on operating, purely and simply, on European territory.” And to prove that such a measure is feasible, the Commissioner recalls that this is what has just been done concerning the Russia Today channel and Sputnik. In practice, the ban is the same, applied by internet providers who submit to the law, but in terms of law, the ban on Russian media does not meet the same rules as those of the Digital Services Act. Sputnik and Russia Today have indeed been banned under the special framework of the “sanctions regime”. With the DSA, it is not certain that the European Union will come to this radical decision. Contacted by CheckNews on this subject, Thierry Breton’s cabinet tempers: “It is a sanction that is provided as a last resort, the DSA is not there either to issue fines, but to correct faulty behavior.” To prevent this behavior, the Commissioner for the Internal Market announced that the platforms would have to pay a fee of a maximum of 0.05% of their turnover to allow his cabinet “to have the means to hire specialists” responsible for supervising them.

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