On 18 December 2023, the European Union formally opened infringement proceedings into social media platform X (formerly Twitter), over potential breaches of a number of provisions of the Digital Services Act (DSA). ARTICLE 19 supports robust enforcement of the DSA and the Commission efforts to ensure that X fully complies with its obligations. At the same time, we believe it is crucial that investigations into the compliance with the DSA consistently incorporate considerations for the protection of freedom of expression and adhere to due process and rule of law principles.
Barbora Bukovská, Senior Director of Law and Policy at ARTICLE 19, said:
“This is the first formal investigation initiated under the Digital Services Act. The expectations are high as to the role it can play in protecting fundamental rights online. Whether these expectations can be met will be contingent on effective enforcement based on due process and rule of law principles. We hope that these infringement proceedings are not merely an act of political posturing directed at an obvious target.
“It is imperative that the European Commission gets this right. DSA should be enforced consistently, equally and impartially across all platforms, based on evidence and in a way that will further, not restrict, freedom of expression and fundamental rights online. Other social media companies and national regulators within the EU and beyond will be watching closely.
“There are certainly many ways in which, over the years, X has fallen short of its responsibility to respect human rights and freedom of expression, negatively impacting rights of users in the EU and beyond. The company for its part needs to finally get its act together.”
The infringement proceedings brought by the European Commission against X reportedly focus on the dissemination of illegal content, the effectiveness of measures taken to combat information manipulation on the platforms, advertising transparency, data access to researchers and deceptive design of the user interface.
Since Elon Musk acquired the company, ARTICLE 19 has repeatedly voiced concerns about the substantial cuts made to essential teams, including the human rights team, and the dismantling of the Trust and Safety Council. We also noted concerns about a potential rise in online abuse, hate speech and disinformation, all of which actually decreases freedom of expression online by driving some users away from the platform. X’s transparency report claims that “[its] scaled operations team possesses a variety of skills, experiences, and tools that allow them to effectively review and take action on reports across all of our rules and policies.” However, the same report reveals that many European languages are not covered by a single content moderator, while others, such as Italian, are covered by no more than two. This makes it impossible to appropriately moderate content on X.
Overall, it does not seem like X is taking its responsibilities under the DSA – or the international human rights framework – seriously and there are likely legitimate reasons for opening infringement proceedings against the company.
At the same time, there is a cause for concern. Following the 7 October attacks carried out by Hamas, Commissioner Breton was quick in writing to X – and later on to other platforms – making several demands which ARTICLE 19, Access Now and 28 other civil society organisations warned were at odds with the DSA itself and could negatively impact freedom of expression and human rights.
Any investigation by the European Commission into X’s measures to counter information manipulation and the dissemination of illegal content must take into account how these measures fare against the protection of freedom of expression which is also explicitly required by the DSA. The three-part test under Article 19(3) of the International Covenant on Civil and Political Rights and Article 10(2) of the European Convention on Human Rights only allows restrictions on freedom of expression that are in compliance with the principles of legality, legitimacy, necessity and proportionality.
Lastly, ARTICLE 19 reminds the European Commission that civil society organisations and independent experts can play a crucial role in all stages of the DSA enforcement. We reiterate our call on the Commission and EU Member States to establish expert groups composed of civil society organisations and independent experts to facilitate the cooperation in the effective DSA enforcement.