By Sylvain Zeghni (economist, associate professor at Gustave Eiffel University)
Social media has been blamed for many contemporary political and social ills, including fueling the rise of extremist politics and spreading misinformation during the Covid-19 pandemic. The EU’s response to these concerns has been to draft a new legislative package for digital services, which aims to “create a safer digital space where users’ fundamental rights are protected and create a level playing field for businesses”.
However, the measures in the new package – which consists of two different laws, the digital service package and the digital market package – cause some significant problems. It is also unclear whether operationalization and enforcement of the legislation will really help to solve the problems in connection with digital communication.
“Irresponsible and costly” moderation
One of the main aims of the legislative package is to combat the spread of illegal content and false information online. This has been an important question for some time, but two central questions arise here.
First, the establishment of European standards for what constitutes “illegal” content has implications for freedom of expression. The fact that these standards are determined by unelected officials in Brussels sets a dangerous precedent. In fact, similar legislation 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 specialist “trusted third parties” to identify and remove content. However, the legislation remains ambiguous as to how individuals will be “trusted” and how they will be trained or retained over time. This situation replicates many of the problems that platform moderation has already been criticized for, namely that it tends to be both irresponsible and expensive.
The potential costs to social media companies are huge and even the maximum fines for non-compliance (6% of operating profit) can be considered less costly if considered simply as a cost of business. Not to mention the huge burden that content moderation places on employees, which can prove extremely problematic in terms of staff training and retention.
Augmenting employees with algorithms and artificial intelligence seems to be a safer and more logical alternative. However, these algorithms have previously been criticized for their opacity and lack of transparency, as well as for missing harmful content due to the complex nuances of text, image, video and audio that make up the social media landscape.
“Fuel on the fire”
The new package specifies that these processes must be made transparent. Again, it’s not as simple as it seems. Algorithms also sort content to generate the revenue social media needs to survive and are therefore extremely commercially sensitive. Platforms invest huge sums in the human and mechanical infrastructure needed to generate these complex patterns and are unlikely to offer their trade secrets openly.
Another important issue that could significantly limit the effectiveness of the new legislation is the remarkable flexibility of users. Regulating social media and censoring platforms to remove violent or hateful content is nothing new. However, users have shown great ingenuity in circumventing these attempts by migrating platforms.
This has often been demonstrated by Daesh and ultra-right influencers and conspiracy theorists, among others. These actors simply bypassed censorship by switching to other apps like Telegram. The fact that many conspiracy theories are based on ideas of victimization and persecution by the ‘elite’, as well as a general paranoia about the authorities trying to prevent people from discovering the truth, means that increased censorship adds fuel to the fire. As social media platforms continue to proliferate and grow, questionable content will always resonate.
Complex and problematic rules
It is difficult to imagine a situation in today’s digital world where social media would not be regulated. However, it is extremely complex and problematic to establish effective regulation. It is easy to promise a ‘safe digital space’ and ‘protect users’ rights’, but much more difficult to deliver on these promises or to get large multinationals to obey the rules. It remains to be seen whether the new EU legislative package can really make a difference in this context.
The Digital Services Act also shows a somewhat worrying aspect of Europeanisation. Regardless of the effectiveness of the EU’s attempts to regulate digital communications, the new legislation therefore raises important questions about the Europeanization process and the EU’s democratic deficit. These questions are arguably as important as the problems the Digital Services Act package aims to address.