Brussels and Washington are once again at odds over Europe’s sweeping social-media restrictions, contained within the 2022 Digital Services Act (DSA). In a letter sent earlier this month, the EU’s vice-president for tech sovereignty, Henna Virkkunen, rejected claims made by Donald Trump’s team that the DSA is a tool for censorship. She insisted that the law ‘does not regulate speech’ and that the EU remains ‘deeply committed to protecting and promoting free speech’.
The letter was predominantly in response to US Republican congressman Jim Jordan, who chairs the powerful House Judiciary Committee. Jordan, a long-time critic of the DSA, outlined his concerns to Virkkunen in January, when he warned that the law’s impact on free expression could extend beyond Europe’s borders. Similar attacks have been made by US vice-president JD Vance and X owner Elon Musk.
According to Jordan, the DSA could ‘limit or restrict Americans’ constitutionally protected speech in the United States’. He also argued that the law, which compels platforms to mitigate ‘systemic risks’ linked to ‘misleading or deceptive’ speech, will likely incentivise companies to remove even lawful content.
Jordan warned that ‘because many social-media platforms generally maintain one set of content-moderation policies that they apply globally, restrictive censorship laws like the DSA may set de facto global censorship standards’. In other words, the risk is that the EU – not the American First Amendment – could become the ultimate arbiter of what US citizens can and cannot say online.
At the centre of the dispute are Articles 34 and 35 of the DSA, which impose broad but ill-defined obligations on ‘very large’ online platforms and search engines to identify, assess and mitigate ‘systemic risks’ associated with their services. These ‘risks’ extend beyond illegal content to include vague threats to ‘civic discourse’, ‘electoral processes’ and ‘public health’ – areas where even governments struggle to draw clear lines. With no firm legal definitions, the European Commission will be the one deciding what adequate risk mitigation looks like.
In her letter, Virkkunen describes the DSA as ‘content-agnostic’, claiming it merely sets procedural requirements rather than dictating what platforms should remove. But this ignores how the legislation actually functions. With ‘systemic risks’ so poorly defined in law, platforms are left to second guess what might constitute a compliance breach. No company wants to be the first regulatory test case. Platforms that fall foul of the DSA face ruinous fines of up to six per cent of their global annual turnover. As a result, companies will inevitably err on the side of caution, removing content that could be considered harmful, even when it is entirely lawful.
Virkkunen also dismisses Jordan’s concern that EU regulation could affect speech beyond Europe’s shores, insisting that the DSA ‘applies exclusively within the European Union’. But Jordan is absolutely right to say that major platforms operate internationally and regulatory pressure in one jurisdiction often dictates content-moderation policies worldwide.
The ‘Brussels Effect’, where the EU’s strict standards end up being adopted by firms and other regulators around the world, is nothing new. History shows that platforms frequently adopt the strictest regulatory standards across all markets to minimise compliance risks. The General Data Protection Regulation (GDPR), implemented in the EU in 2018, reshaped data privacy on a global scale. Many companies chose to apply its stringent rules worldwide, rather than create region-specific policies. The DSA’s obligations – broad, vague and backed by heavy penalties – will likely have a similar effect.
Despite Virkkunen’s best efforts, Jordan’s fundamental criticisms remain unanswered. Faced with ambiguous legal thresholds, huge fines and the weight of European precedent in shaping global regulatory standards, platforms won’t just remove illegal content. They will also end up stripping away exactly the kind of speech that Lord Justice Sedley once defended as vital to protect: ‘The irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative.’ Speech, in other words, that is essential to the democracies Virkkunen is claiming to protect.
The DSA will undoubtedly have chilling effects not only on Europeans, but also on citizens across the world. Washington is right to keep it in the crosshairs.
Freddie Attenborough is the digital communications director of the Free Speech Union.