The Digital Services Act and the Brussels Effect on Platform Content Moderation

April 25, 2023

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The European Union (EU) is at it again — engaging in extensive regulation of social media platforms in ways that will affect how the platforms regulate not just in the EU, but the world over. The latest regulation—the broad-ranging EU Digital Services Act (DSA) — will create a host of tensions and outright conflicts with the United States speech regime applicable to social media platforms. And the DSA, like other recent EU regulations of social media platforms, will further enhance the Brussels Effect, whereby European regulators will continue to strongly influence how social media platforms globally moderate content and will incentivize the platforms to moderate much more (allegedly) harmful content than they have in the past. This extensive regulatory regime will incentivize platforms to skew their global content moderation policies toward the EU’s instead of the United States’s balance of speech harms versus its benefits. While the EU and its constituent nations generally prioritize protecting against dignitary, reputational, and societal harms more highly than absolute freedom of expression and generally holds platforms accountable for their role in facilitating harmful content, the U.S. takes the opposite approach. The DSA will likely incentivize platforms to skew their content moderation policies toward the EU’s approach because the DSA provides for huge financial penalties for violating its provisions, including maximum fines of six percent of a platform’s annual worldwide turnover. The DSA’s incentives for platforms to moderate harmful content, if implemented globally (as is likely), will also create tensions with recently enacted U.S. state laws like those adopted in Texas and Florida (and proposed in federal legislation), which prohibit platforms from moderating content in a viewpoint-discriminatory manner. Finally, the DSA’s onerous procedural requirements imposed on platforms — including the Act’s extensive notice, right of appeal, and explanation requirements — will create tensions, and in some cases conflicts, with the procedural requirements imposed on platforms under U.S. state laws. These onerous procedural requirements would likely be considered unduly burdensome and violative of the First Amendment if implemented by the U.S. federal or state governments.

This is a forthcoming paper. You can currently access it through GW Law Faculty Publications & Other Works.