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The Brussels Effect?: Potential Domestic Impacts of International Online Speech Regulation

Jennifer Huddleston

One of the great benefits of the internet is how it connects global communities. From its earliest days, people have used the internet to make friends and learn about different experiences around the world. Many have credited the internet and social media in lowering the barriers to speech and providing new opportunities for voices that might have otherwise been oppressed.

The United States has been the birthplace of many of the leading global online platforms, and these companies have expressed a strong commitment to free speech online. What was initially considered a strong feature of the internet is now facing rising pushback both at home and abroad as not all governments support a broad conception of free speech.

While the strength of the First Amendment may allow Americans to think they are insulated from attacks on free speech, especially given the dominance of American platforms, the global nature of the internet means restrictions and changing perceptions of free speech abroad are still likely to impact users and businesses in the United States.

What Might Be Causing a Brussels Effect on Speech?

The Brussels Effect refers to European Union regulations which become the de facto governance norms beyond the borders of the EU. One notable example of this phenomenon is the General Data Protection Regulation (GDPR), which has emerged as the default for data privacy regulation. The potential penalties for violation and the significant expenditures and manhours for compliance with the regulation are likely part of this story. Additionally, the concrete definition of data subject or covered entity also may encourage broader applications. Now, various proposed regulations could have a similar impact on speech, both through formal regulation and more informal influence on online speech.

In the EU, the Digital Services Act, a sister piece of legislation to the Digital Markets Act, updates the legal framework for how companies advertise and report their content, and is likely to have significant impacts on free speech. In its attempts to “protect users,” the DSA bans targeted advertising for online platforms based on personal data, requires transparency by online platforms on recommendation algorithms, and implements a user “flagging” system to combat illegal goods and misinformation online, along with other regulations designed to insulate consumers from harm.

While the DSA may be seeking to limit the impact of “bad” content, it is also likely to impact access to content more generally. The Act gives the European Commission more regulatory oversight through the creation of a European Board for Digital Services to inform and enforce the new rules. Among its requirements are transparency about specific harms. Such a requirement, however, is unlikely to only impact “bad” content and could evolve into a much broader requirement that has a more significant impact on speech. In some cases, these may start out as “optional,” but such a requirement is still likely to be enforced broadly out of concerns for further regulatory scrutiny or involvement. The bill went into effect in November of last year, and full enforcement for the DSA will begin next February.

Even though the United Kingdom has left the European Union, it too has recently considered numerous proposals that would have a significant impact on the future of online speech.

The UK’s Online Safety Bill is legislation with the focus of protecting children online, similar to the many U.S. state‐​level bills and the Kids Online Safety Act presented in this year’s U.S. Congress. However, the OSB has become a catchall for content moderation policy since its first draft in 2021, including provisions that require age checks on pornography sites in the same breath as removing child sexual abuse material (CSAM) from platforms through the usage of “accredited technology.” There are aggressive consequences for failure to comply with the OSB: fines up to 10% of worldwide revenue of the company and the blockage of their service from the United Kingdom market. The bill is in the House of Lords, the Parliament’s upper chamber, and could be passed by the end of this summer at its current pace.

Additionally, the update of the Investigatory Powers Act put forward would require companies to approve new security features before launching them, or even disable certain features. Such a requirement would make encrypted messaging services more vulnerable. As a result, a number of companies, including Apple, have threatened to remove their messaging products from the UK if the proposal goes through as currently drafted. While we often think of encryption as a privacy issue, this tool is critical for the speech of those who may be concerned about their safety and security from their own government, including journalists and activists.

Such changes have been increasing outside of Europe as well. For example, in Latin America, government espionage through spyware and sweeping online speech restrictions violate the right to privacy and freedom of expression of citizens throughout the region.

Human rights groups have uncovered the use of the Israeli spyware Pegasus in three Latin American countries — Mexico, El Salvador, and the Dominican Republic — by government executives to spy on their citizens without their knowledge or consent. Those engaged in investigative journalism and civic activism are targeted in particular by the spyware. In addition to unconstitutional surveillance, the legislative bodies of many governments in the region have passed or are in the process of passing laws which would stifle free speech under the guise of fighting against disinformation or hate speech online. For example, Venezuela’s Law Against Hate (passed unanimously by an illegitimate chamber) squashes online discussion on messaging and social media platforms which were safe havens until the legislation, which cracks down on speech. The bill operates through Maduro loyalists and government technicians who point out social media posts or text messages that “promot[e] national hate” to prosecutors without much definition on what constitutes such hate.

There are many other international examples that could be explored but, in general, a growing amount of regulation around the world risks spillover effects to comply with such laws.

How International Tech Policy Could Impact Americans’ Speech

American companies often bring American values regarding free speech and expression into their policy decisions. However, many companies find it easier to have a single set of standards around issues — such as content moderation — rather than have specific rules for each country of operation. While it is certainly understandable why this may be easier, the reality is many Americans may find changes to their online experiences or their own ability to speak freely online. Additionally, this raises questions of what such shifts may do to the positive ways in which the internet has expanded speech for marginalized users and communities as platforms face an increasing number of challenging regulations.

Attacks on encryption could lessen the security of everyone that uses these services. A “backdoor” that allows law enforcement to scan messages could easily be abused by bad actors to obtain information. Additionally, it could render users more vulnerable to surveillance by adversarial nations like Russia or China and limit the ability of journalists to safely contact those engaged in activism in such countries.

Changes to online speech, however, can also happen in more informal ways. For example, many European and Latin American countries have created laws governing hate speech or harmful content online. Platforms may use such laws to formally govern content in such countries, but they are also likely to further the development of internal policies around such issues as well. While many would applaud platforms for taking down racist, sexist, or antisemitic content, the result of hate speech laws’ interpretation is the take‐​down of much more speech than many would immediately assume. Platforms might remove debates over important but sensitive topics such as the Israel‐​Palestine conflict or transgender athletes in women’s sports because of the way moderation terms might be adapted to avoid violating such laws. The result is a concerning shift in norms around online speech that might favor over‐​moderation over potential risks in legitimate debate.

Additionally, a number of governments have placed informal or formal pressure on online platforms to moderate their users’ content. Again, this can remove certain information or opinions from everyone due to the preferences of a particular government.

There is an extensive history of jawboning over the last half a century in the United States, culminating in the age of social media where it manifests as invisible changes to content moderation policies of platforms. However, this phenomenon is not exclusive to the United States. Authoritarian regimes around the world engage in similar practices to control the kinds of speech that exist online, especially if said speech talks ill of the administration in power. Countries like Turkey and India have ordered social media platforms to take down content or block users in the name of national unity or to maintain a positive national image.

While this jawboning and direct censorship by foreign actors does not carry an obvious effect on the United States, it limits the diversity of sources online and forces platforms to possibly change their content moderation policies to adapt to the threats and regulations of countries that seek to limit freedom of expression. These actions come at the detriment of all social media users.

Conclusion

Americans have trusted that the value of free speech on the internet will be based on an American approach to such principles. A growing number of international laws, however, are creating new challenges for both American companies and users. This certainly does not mean that the United States should seek to change its position and more greatly regulate online speech, but it does mean that, in our increasingly connected age, it is important to be aware of the challenges to free speech around the globe and the consequences such proposals have for both companies and users.

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