March 24, 2022

The decision by Facebook, Google, TikTok and others to block RT and Sputnik—Russian state-controlled media networks—illustrates the need for systematic legislation governing social media platforms, experts agreed this week.

Speaking at a
recent event, former member of European Parliament Marietje Schaake said she hopes the war in Ukraine highlights what is at stake, and asked “why it had to take such a devastating war for [tech] companies to appreciate how powerful they really are?”

At two Columbia University meetings convened to discuss the forthcoming Digital Services Act, which is expected to be passed by the European Union in 2023, scholars and activists agreed that it’s a step forward from the ad-hoc governance of the last two decades.

“Controlling social media gives you the power to control the narrative, including the narrative about social media,” noted Professor Joseph E. Stiglitz.

The COVID-19 pandemic, hate speech online and massive disinformation about Ukraine has underscored the need for a systematic  approach to dealing with the threats to society caused by illegal speech online. However, the long-awaited DSA may be somewhat delayed due to the crisis in Ukraine. In part this is because of lengthy negotiations taking place in Brussels between Parliament, the Commission and the Council. “The parliament treated the DSA as a Christmas tree and tried to hang balls on it. If they stick to the basics, it could pass quickly,” said one panelist speaking at a small meeting held at Sciences- Po on March 18.

The Digital Services Act (DSA) and the Digital Markets Act (DMA) are twin bills that were introduced in 2020, aimed at giving more teeth to the EU’s attempts to address the power of big tech. The Digital Services Act, in some ways resembles banking regulation as it requires the social media platforms to assess the risk of harms to society and then show what measures they are taking to mitigate the risk. The Digital Markets Act (DMA) is more about competition and allows regulators to do ex-ante regulation of the “scalable gatekeepers.” This means not waiting for a Google or Facebook to grow so large that they destroy a market, but allowing regulators to step in before this happens.

A round of negotiations took place in Brussels on March 16 when it became clear what will be included and what will not. Member of the European Parliament Paul Tang, and others, had hoped the bill would include a ban on microtargeting of advertisements, but that got knocked out during negotiations and will be covered in other bills. NGOs and civil society groups seem to have succeeded in persuading the EU that the DSA needs to comply with the UN’s human rights standards.

The decentralized enforcement model used for the European privacy law (GDPR), in which member states take responsibility for enforcing data privacy regulations and protections in their own countries, was a mistake that no one wants to repeat, the panelists agreed. Ireland is known for being soft on big tech, in part because companies like Google, Facebook and Apple put their European headquarters  there in order to avoid paying taxes. Columbia Law School professor Anu Bradford summed up the problem when she noted that the privacy regulation bodies in Ireland have an annual budget worth the same as what big tech companies make every 10 minutes. How can they hope to keep up? 

It seems that centralized enforcement, with EU governing bodies in Brussels in charge, will take place. There was discussion about whether tech lobbying will now intensify in Brussels in an attempt to capture regulators there.

Given how slow the US has been to regulate, European regulators hope that the two laws will become a global standard, with MEP Paul Tang and other panelists expressing the hope that the EU and US will be able to reinforce each other across the Atlantic. But Rutgers law professor Ellen Goodman noted that any US law would need to develop enforcement mechanisms and capacity in the US, which has less of a tradition of this sort of regulation.

However, panelists stressed that the DSA’s approach of demanding algorithmic accountability and transparency, rather than censorship of content, is part of why it may succeed and even cross the Atlantic in some form or another.

“This legislation is not the end of free speech”, Bradford said.

Free speech is an extremely important and treasured right in both the US and the EU, noted panelist and former MEP Marietje Schaake, adding that regulators need to balance the right to freedom of speech with other rights such as living a healthy life, or the rights of children online.

SIPA’s Technology, Media and Communications Specialization invited panelists to this year’s Niejelow Rodin Global Digital Futures Policy Forum online on March 2 along with help from the European Institute and the Saving Cyberspace Initiative at SIPA. The March 2 panel was moderated by Mutale Nkonde from Columbia University.

 A follow-up meeting was organized at Sciences-Po on March 17 with SIPA’s tech program, Columbia World Projects and Alliance and Sciences-Po law school professor Séverine Dusollier. The panelists in Paris included  Vera Franz from Open Society Foundation, law professor Joris van Hoboken, France’s digital ambassador Henri Verdier, Alexandre de Streel from University of Nemur. Sciences-Po professors from a range of departments – including law and economics – attended.

Further meetings are planned in 2022 as part of ongoing work on market power being spearheaded by Columbia World Projects and supported by the William + Flora Hewlett Foundation. Contact Anya Schiffrin [email protected]

The March 2 conversation also touched on the topics of impact assessment, whether regulating will disincentivize innovation, and what will not be included in the legislation. Watch the entire panel and the audience Q&A below: 

— by Anya Schiffrin (director of the Technology, Media, and Communications specialization) and Morgan McMurray MPA ’23

Digital Services Act: What Can the US Learn from the EU?

Digital Services Act: What Can the US Learn from the EU?