By Sylvain Jeghny (Economist, Gustave Eiffel University Lecturer)
Social media has been blamed for many contemporary political and social ills, including the rise of extremist politics and the spread of misinformation during the Covid-19 pandemic. The EU’s response to these concerns is to develop a new digital services legislative package that aims to ‘create a safe digital space where users’ fundamental rights are protected and a level playing field for businesses’.
However, the measures included in the new package – which consists of two different laws, the Digital Services Package and the Digital Markets Package – present some significant problems. It is also unclear whether the implementation and enforcement of the law will actually help solve the problems associated with digital communications.
“Irresponsible and costly” moderation
One of the main objectives of the legislative package is to combat the spread of illegal content and false information online. This has been an important issue for some time, but two key questions arise here.
First, the establishment of European standards on ‘illegal’ content has implications for freedom of expression. Having these standards decided by unelected officials in Brussels sets a dangerous precedent. Indeed, a similar law proposed by Emmanuel Macron’s government in 2020, the so-called Avia Law, was widely challenged by the Constitutional Council.
Second, the rules set out a framework for platforms to work with specialized ‘trusted third parties’ to identify and remove content. However, the law remains unclear as to how individuals will be ‘trusted’ and how they will be trained or retained over time. This situation replicates many of the problems for which platform moderation has already been criticized, such as that it tends to be both irresponsible and costly.
The potential costs to social media companies are enormous, and even the maximum fine for non-compliance (6% of operating profit) can be considered less expensive if considered simply as a business cost. Not to mention the huge burden that content moderation places on staff, which can be extremely problematic when it comes to staff training and retention.
Empowering workers with algorithms and AI seems a safer and more logical option. However, these algorithms have been criticized in the past for their opacity and lack of transparency, as well as missing out on harmful content due to the complex nuances of text, images, video and audio that make up the social media landscape.
“Fuel to the Fire”
The new package specifies that these processes must be transparent. Again, it is not as simple as it seems. Algorithms also select content to survive on social media for monetization and are therefore highly commercially sensitive. Platforms invest huge amounts of money in the human and mechanical infrastructure required to create these complex patterns and are unlikely to be willing to publicly offer their trade secrets.
Another important factor that may significantly limit the effectiveness of the new law is the extraordinary agility of the users themselves. Regulating social media and censoring platforms to remove violent or hateful content is nothing new. However, users have shown great skill in thwarting these attempts by switching platforms.
This has often been demonstrated by, among others, Daesh and far-right influencers and conspiracy theorists. These actors evaded censorship by switching to other apps like Telegram. The fact that many conspiracy theories are based on the idea of persecution and oppression by the ‘elites’, as well as a general confusion about authorities trying to prevent people from discovering the truth, means that increased censorship is adding fuel to the fire. As social media platforms continue to expand and grow, questionable content will always resonate.
Complex and problematic regulations
In today’s digital world it is hard to imagine a situation where social media will not be regulated. However, establishing effective controls is extremely complex and problematic. It’s easy to promise a ‘safer digital space’ and ‘protect users’ rights’, but it’s harder to deliver on those promises or get big multinational corporations to comply. Whether the new EU legislative package can really make a difference in this context remains to be seen.
The Digital Services Act also demonstrates a somewhat troubling aspect of Europeanisation. Regardless of the effectiveness of the EU’s efforts to regulate digital communications, the new law therefore raises important questions about the Europeanization process and the EU’s democratic deficit. These questions are arguably just as important as the issues the Digital Services Act package aims to address.