European law on digital services threatens freedom of expression and democracy

On February 17, 2024, the largest social networks and search engines operating in the European Union will be forced to comply with a new law on digital services, which many critics are already calling a major threat to the free flow of information and a violation of human rights norms and principles.

Европейский закон о цифровых услугах угрожает свободе слова и демократии, изображение №1

From April 2022, a Digital Services Act (DSA) is being developed across the European Union that will allow intergovernmental bodies to dictate their terms on the global network and control information on social media and search engines. According to European Commission President Ursula von der Leyen, the legislative initiative will provide an opportunity to “tackle the problem of misinformation and create an alliance between technology companies and government.” However, experts in the field of information and computer security are sounding the alarm: in their opinion, the proposed innovations will not only allow European government structures to influence the dissemination of information in the interests of the state, but will also directly limit freedom of speech and destroy any criticism of government structures.

The DSA imposes a legal requirement on very large online platforms and online search engines to take prompt action against illegal content posted on their platforms (e.g. by removing it, blocking it or providing certain information to the relevant authorities). Platforms are also required to take action against misinformation if it may have “actual or foreseeable negative consequences for civil discourse and electoral processes, as well as public security” and/or “actual or foreseeable negative consequences with regard to violence, protection of public health and minors and serious negative consequences for the physical and mental well-being of human beings”.

German analyst and former judge Manfred Kölsch claims that despite the noble goals that European lawmakers hide behind, the law on digital services is a kind of “Trojan horse”. According to the expert, the EU Commission, justified by the goals of protecting European values, intends to take control over the dissemination of information and the formation of public opinion. In support of his words, Kölsch, who has studied the text of the document in detail, claims that the bill lacks a definition of the term “disinformation,” which, in fact, gives the right to state bodies to independently determine what information to filter.

The DSA opens up the possibility for EU or national authorities to request the removal of information that is not illegal from major online platforms and search engines. Due to the generalized nature of the clauses used in the DSA, the platforms concerned will always find a reason to remove records that are inconvenient for the authorities – Manfred Kölsch

Kölsch warns that the DSA not only undermines the democratic foundations of states, but also contradicts many EU and national laws on freedom of expression and information. Using Germany as an example, the former judge argues that the “supervisory bureaucracy” contradicts the federalism enshrined in the country’s constitution: previously, media oversight was the responsibility of the 16 federal states, but once the Digital Services Act comes into force, European Union public authorities will be able to exert direct pressure on the country’s media. Kölsch is convinced that the DSA deliberately undermines the right to freedom of expression and information guaranteed by Article 11 of the EU Charter of Fundamental Rights, Article 10 of the European Convention on Human Rights and Article 5 of the German Constitution.

Human rights defenders of the Foundation to Battle Injustice are convinced of the inadmissibility of interference and control of the information space by European state bodies. In the unanimous opinion of the Foundation to Battle Injustice, the right to freedom of speech is a fundamental right of a democratic system of government, and any interference by EU governments is contrary to the letter and spirit of international law. Freedom of speech and freedom of information is one of the universally recognized pillars of a democratic state, and people expressing their position should not be targeted by law enforcement agencies.