Report: E.U. Censorship Laws Mostly Suppress Legal Speech

Among those who think the United States is an unseemly cesspool of unrestrained opinions voiced by those people, Europe is often touted as an alternative for speech regulation. European Union law, following in the footsteps of national legislation, imposes enforceable duties on private platforms to purge "hate speech" and "disinformation"—or else. But free speech advocates warn that these laws are clumsy and dangerous tools that threaten to muzzle expression far beyond the bounds of their nominal targets. They're right, and they now have receipts.

Europe's Intrusive Speech Regulations

In a new report, Preventing "Torrents of Hate" or Stifling Free Expression Online?, The Future of Free Speech, a think tank based at Vanderbilt University, points out that online regulation changed in 2017 with Germany's adoption of the Network Enforcement Act (NetzDG), "which aimed to combat illegal online content such as defamation, incitement, and religious insults." That law inspired lawmakers around the world, as well as similar E.U.-wide legislation in 2022 in the Digital Services Act (DSA). "The underlying assumptions surrounding the passage of the DSA included fears that the Internet and social media platforms would become overrun with hate and illegal content," notes the report.

But "hate" and other forms of unacceptable content are often in the eyes of the beholder. And the power to punish platforms for allowing forbidden speech encourages suppressing content.

The DSA "gives way too much power to government agencies to flag and remove potentially illegal content and to uncover data about anonymous speakers," cautioned the Electronic Frontier Foundation in 2022.

"The Digital Services Act will essentially oblige Big Tech to act as a privatized censor on behalf of governments — censors who will enjoy wide discretion under vague and subjective standards," Jacob Mchangama, now executive director of The Future of Free Speech, warned that same year.

Now, here we are with these laws in effect. What does the new report find about their implementation?

Banned but Legal

"Legal online speech made up most of the removed content from posts on Facebook and YouTube in France, Germany, and Sweden," according to the report. "Of the deleted comments examined across platforms and countries, between 87.5% and 99.7%, depending on the sample, were legally permissible. The highest proportion of legally permissible deleted comments was observed in Germany, where 99.7% and 98.9% of deleted comments were found to be legal on Facebook and YouTube, respectively."

Keep in mind that Europe isn't a First Amendment zone; speech laws are more restrictive there, and people can be punished for saying things that would barely raise eyebrows among Americans. Germany, for example, arrested a comedian for insulting Turkey's president before dropping the case in the face of ridicule. Denmark banned the burning of holy texts after a series of Koran-torchings. Still, most of the content being removed from social media is permissible even under local laws.

"A substantial majority of the deleted comments investigated are legal, suggesting that – contrary to prevalent narratives – over removal of legal content may be a bigger problem than under removal of illegal content," add The Future of Free Speech authors.

Big Incentives To Muzzle Speech

In the case of Germany, where NetzDG's restrictions are in effect, the report speculates that social media companies "may over-remove content with the objective of avoiding the legislation's hefty fine."

But online companies have every reason to be leery not just of German officials but of the broader European Union bureaucracy, which is forever investigating and fining big tech firms. Last year, Facebook was slapped with a $1.3 billion penalty over alleged data-privacy violations.

"The fine trailed only two levied against Google parent Alphabet (GOOGL) in 2018 and 2017, respectively," commented Investopedia's Mack Wilowski. "It is the largest fine so far this year."

In July 2023, European Union Internal Market Commissioner Thierry Breton warned internet firms that "if they don't act immediately" to remove content government officials consider unacceptable "at that point we'll be able not only to impose a fine but also to ban the operation [of the platforms] on our territory."

Given the prospect of massive fines and even outright proscription from Europe, it's no wonder that internet companies might be a little overenthusiastic about yanking content from their servers. It's not exactly heroic, but it's certainly safer to field public complaints and criticism from civil liberties groups than to draw the attention of sniffy and punitive Eureaucrats.

News You Can't Use

Unsurprisingly, high-profile current events featured prominently in the suppressed content. "In general, the Russian invasion of Ukraine emerged as a prominent subject in the deleted comments across all three countries," notes the report. Additionally, many of the memory-holed French comments addressed the police killing of a 17-year-old and subsequent rioting.

Which is to say, it appears that discussing the news of the world is a good way to get censored in the European Union.

But how common is suppression overall, even allowing that much censored content violates no rules? Of all comments, according to the report, 3.4 percent were deleted. That rate varies across the three countries studied from 0.83 percent in Sweden to 3.18 percent in France and 4.53 percent in Germany. Interestingly, Swedes rank as highly tolerant of controversial speech in a separate index of free speech approval; the country comes in at number four, just after the United States. France and Germany, by contrast, rank at a mediocre 14 and 15, respectively. Enforcement of speech regulation may be ham-handed across the board, but it's seemingly more common in cultures less tolerant of free expression.

"A system has been created which undermines freedom of expression on the basis of shallow empirical evidence with governments giving (private) social media giants the key and, increasingly, the obligation to steer the speech of billions, essentially dictating digital discourse," concludes the report from The Future of Free Speech.

That's a problem for those of us who favor freedom. Whether government officials agree that intrusive censorship is a problem is another matter.