Over-Moderation: Analysing the EU Digital Services Act

In 2008, the European Union and United States had roughly equal gross domestic product figures of $14.2 trillion and $14.8 trillion respectively. By 2023, the Eurozone’s GDP had crawled up to just over $15 trillion, far behind the USA, which had almost doubled to a total of $27.4 trillion in the same 15-year period. These numbers constitute a ghastly reproach to the polices of the unelected bureaucratic body at the head of the EU: the European Commission. The USA is innovating. Europe, sclerotic, is regulating. Brussels’ affinity for control over the lives of ordinary people is very clearly shown in its latest attempts to regulate freedom of speech.

With the passing of the EU Digital Services in 2022, Europe is on track to see greater curbs on its freedom of expression. Many in the U.S., however, look to the European Union as an alternative to the rabid disagreements that free speech absolutism under the First Amendment creates there. Among these is the former Candidate for President Hillary Clinton, who praised the censorship that has come in the wake of recent EU legislation. In reality, EU legislation is creating an environment in which people are limited by fear and legal overreach in the expression of their opinions and platforms are incentivised to restrict individual freedoms.

The 2022 EU Digital Services Act (DSA) was originally inspired by the 2017 German Network Enforcement Act, the stated aim of which was the bulwarking of society from the encroaches of nebulous internet ‘misinformation’. The act attempts to limit freedom of expression in the same way. It permits national government agencies to uncover personal data about autonomous speakers and, according to the Electronic Frontier Foundation, ‘will essentially oblige Big Tech to act as a privatised censor’ on their behalf. This has been further aided by the Data Governance Act, which was instrumental in setting up a legal framework for common data spaces in Europe where data sharing between governments and agencies within the EU has increased.

 The DSA has a few concerning components to it. Although on the whole the act got several things right, it uses nebulous language to create space for strong censorship powers. In September, more than 50 European NGO’s stressed that the broad terms of “systemic risks,” “disinformation,” and “illegal content,” coupled with the activist role of “trusted flaggers” to delineate between legal and illegal posts, might violate freedom of expression and information under Article 11 of the EU Charter of Fundamental Rights. Within this network of ‘trusted flaggers’ are several government agencies. Coupled with broader powers to uncover and share data of anonymous speakers, the bill enables severe government overreach in regulating speech.

 Although the DSA calls only for the removal of content that violates EU laws, vague guidelines, alongside a burden on both regulatory agencies and platforms to remove speech that may fall into that category, means that the vast majority of what has been struck down has, in fact, been legal. Much of what may regulators consider ‘hate speech’ and ‘misinformation’ has been targeted, imposing de facto limits to the range of lawful expression. The power to remove content on such platforms has fallen upon non-independent agencies and not simply independent courts. In addition, open threats by EU officials such at Thierry Breton, who issued the ominous warning to those who don’t act ‘immediately’ to remove ‘unacceptable’ content that ‘we’ll be able to … ban their operation on our territories’ mean that social media moderation teams often err on the side of caution in striking down comments on the internet. Terms such as ‘misinformation’ and blurry definitions apropos what is deemed to be ‘unacceptable’ open the door to greater fear-based curtailing of freedoms from many platforms. Vanderbilt University, in fact, published research which concluded that companies in Europe ‘over-remove content with the objective of avoiding the legislation’s hefty fine’. Even so, in Germany in 2023 alone, Facebook was given a penalty of $1.3 billion and fines were levied against Alphabet. Fines are so high that the EU has collected more revenue from fines on US tech companies than from taxation of their smaller European counterparts. According to findings shared at a recent US congressional hearing, most speech that had been removed from platforms in the EU had neither been harmful nor illegal.1

 The result of this is that 3.4% of all online content in the EU is censored, with the number in Germany reaching an EU peak of 4.53% (this number more than doubles to 11.46% on YouTube). The Future of Free Speech foundation concluded that of the social media comments deleted across all countries in the European Union, between 87.5% and 99.7% were legal. The EU Commission has formally charged X, which remains committed to strict protections for the freedom of speech, for failing to respect social media laws guidelines under the DSA. It faces a sweeping multi-million Euro fine, which could amount to as much as 6% of X’s global annual earnings. In a spectacular incident of agency overreach, Former EU Internal Market Commissioner Thierry Breton threatened on the 12 August to ban the U.S.-based company from operating in its territories over its live streaming of a conversation between the platform’s owner, Elon Musk,  and U.S. President Donald Trump.

 Europe nevertheless remains relatively tolerant of free expression. After his extraordinary open letter to Elon Musk, succumbing to pressure from the President of the European Commission Ursula Von Der Leyen, Thierry Breton resigned from his position. X remains operational in Europe. Yet there has been a notable decline in the extent of freedom of speech in European society that its citizens should be very concerned with. The foundations of European democracies may take a thousand small blows to topple - a thousand subsections of enormous, self-indulgent safety bills. But freedom will slip away quietly until the process is too late to stop, and Europe has slipped back into a renewed authoritarian moment.

Footnotes

¹ The Foreign Censorship Threat, Part II: Europe’s Decade-Long Campaign to Censor the Global Internet, Interim Staff Rep., H. Comm. on the Judiciary, 119th Cong. (Feb. 3, 2026).