institutional

News from Across the Sea #5

News from Across the Sea 5: Welcome to the fifth issue of our bimonthly newsletter on the DSA! In this issue, we’ll analyze the international context that has led to a situation of great tension between

By Nicolás Zara

News from Across the Sea #5:

Welcome to the fifth installment of our bimonthly newsletter on the DSA! In this issue, we’ll analyze the international context that has led to a situation of great tension between the European regulatory initiative and its main targets: U.S. tech companies. We’ll also share some projects that have kept us busy over the past few months.

What Brought Us Here?

The appointment of Henna Virkkunen to the European Commission’s Digital Technologies portfolio was met with optimism among DSA observers. As a Member of the European Parliament, the Finnish politician had been deeply involved in drafting the regulation, and her more low-key profile was viewed favorably following the outbursts by her predecessor in the role. However, the most significant events since his arrival took place across the Atlantic. Donald Trump’s inauguration as President of the United States of America shook up the landscape of technology regulation. During his presidential inauguration in January 2025, the CEOs of major tech companies (Meta, Google, X, TikTok, Apple, Amazon, among others) could be seen in the audience alongside the President. The most prominent figures in this new public-private alliance (which some have called techbrocracy) are South African Elon Musk, the majority shareholder of X—who holds an advisory position in the government—and Mark Zuckerberg. A few days before the presidential inauguration, Meta’s founder and CEO announced significant changes to content moderation policies and the overall operations of his companies, all of which were suggestively aligned with the incoming administration’s policies. The announcements were heavily criticized by broad sectors of civil society, included direct attacks on the “institutionalization of censorship” in Europe (in clear reference to the DSA) and explicit support for President Trump, whom she publicly asked days later, in a conversation with Joe Rogan, to protect American companies from the European “attack”—via fines and regulations—on the country’s tech industry.

Trumpist Intransigence

The Executive Branch took up the gauntlet through Vice President J.D. Vance, who made harsh statements at the Paris Summit on Artificial Intelligence against “the stringent rules on content removal and monitoring of so-called disinformation” imposed by the DSA on U.S. companies, in the presence of European Commission President Ursula von der Leyen, who was in attendance. A few days later, he spoke critically about the state of free speech in Germany, stating that European democracy is under threat from within, placing particular emphasis on the danger that the exclusion of extremist parties poses to German democracy. This prompted a response from Germany’s Chancellor, Olaf Scholz. The controversy continued with statements by Brendan Carr, commissioner of the U.S. Federal Communications Commission, who argued that the DSA is “incompatible both with our tradition of free speech in the United States and with the commitments these tech companies have made to diversity of opinion.” Carr’s opinion highlights what is truly novel about this historic moment: the complete alignment among major U.S. tech companies (which not so long ago were calling for regulation) and the U.S. government, in opposition to the European regulatory proposal. The companies expressed their gratitude for the support by aligning themselves with the government’s ideas at the organizational level, their policies on content moderation and other aspects. Finally, Jim Jordan, chairman of the U.S. House of Representatives Judiciary Committee, wrote a letter to Henna Virkkunen, European Commissioner for Technology, in which he expressed his concern about the way the DSA’s “censorship clauses” affect freedom of expression in the United States.

Responses from Europe

The seismic shifts caused by the alignment between Big Tech and the U.S. federal government sent shockwaves across the Atlantic. In February, European lawmakers traveled to Washington to meet with their U.S. counterpart Jim Jordan in a clear attempt to bridge differences with the U.S. administration, after Secretary of State Marco Rubio stoked tensions by canceling a bilateral meeting with the European Commission’s representative for foreign affairs. Meanwhile, 39 European civil society organizations issued an open letter to the President of the European Commission urging her not to cave in to pressure from Washington and to stand firm on applying the DSA and the Digital Markets Act (DMA) to U.S. tech companies. Some academics warned of the danger to Europe of “sacrificing” the enforcement of the DSA at the tariff negotiation table with the United States. European authorities have committed to continuing the implementation of their digital package. In this vein, the Commission imposed fines in the millions on Meta and Apple under the DMA, and it is believed to be preparing a significant financial penalty for X under the DSA. At the same time, the Commission is promoting a series of initiatives to deregulate broad sectors of the economy, in line with the recommendations of the Draghi Report. The pressure to deregulate, which some believe comes from Washington, could even lead to a relaxation of obligations arising from the General Data Protection Regulation (GDPR) and the Artificial Intelligence Act.

Analysis

It is important to keep in mind that, for many analysts—some of whom are critical of the state of free speech in Europe—the U.S. government’s “anti-censorship” crusade is not genuine nor consistent with the fragile state of that right within the country. That Meta—which Trump labeled an “enemy of the people” a year ago, now wants to curry favor with him seems less a matter of conviction than of the pursuit of economic gain (or, in the worst-case scenario, an attempt to avoid retaliation by the government). In short, the most appropriate lens through which to analyze the Trump administration’s actions against European regulations is not so much the protection of free speech as it is the trade war his administration is waging with the rest of the world—or, quite simply, its administration’s attempts to silence its critics and give a voice to its domestic and foreign allies. In any case, at the end of the day, what the shift among the “Big Tech” companies shows us is business leaders prioritizing the maximization of their economic profits over any other consideration.

Some relevant announcements:

We are pleased to announce the completion of two projects we have been working on.

  • Our most comprehensive work on the DSA is now available. In our paper “Are Risks the New Rights? The Perils of Risk-based Approaches to Speech Regulation”, we discuss the origins, potential, and limitations of risk-based approaches to the regulation of digital platforms. We argue that, as embodied in the DSA, this approach runs counter to international standards on freedom of expression. This is the paper we presented last December at the Centre for IP and IT Law at KU Leuven. The paper will be published in the next issue of the Journal of Intellectual Property, Information Technology and Electronic Commerce Law (JIPITEC).
  • Our paper “Regulatory Modeling: Assessing the Impact of the Digital Services Act in Latin America”, which reviews all proposals for regulations analogous to or based on the DSA in the region and offers a critical analysis of the adoption of such regulations. This is essential reading for those of us following the DSA from this part of the world.
  • Additionally, we have launched the CELE Research Paper Series on SSRN, where we have compiled our research, technical reports, and working papers on freedom of expression and the Internet in Latin America and around the world. The repository brings together works written over the course of our more than 15 years of work, during which we have conducted studies to inform debates on public policy, access to information, and digital rights—all of which are now also available on this open platform.

What Are We Reading?

  • This paper by Jacob Van der Kerkhof on the main challenges posed by the system of “trusted flaggers” (trusted flaggers) under Article 22 of the DSA, including the risk they pose to freedom of expression.
  • This article by Daniel Holznagel on the “notification and action mechanisms” of Article 16 of the DSA. Thank you very much for reading this far; we’ll see you again soon. Until next time!