Curbs on social media? Judges make it about criminal justice, not free speech.
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Ned Temko Columnist
| London
Judges on both sides of the Atlantic, in Britain, France, and Brazil, have taken on social media titans such as Elon Musk in recent weeks, even as governments hesitate to impose broad regulation that might infringe on freedom of speech.
British courts sent hundreds of people to jail, including for inciting riotous behavior by spreading false rumors online that a man who had killed three little girls was an unauthorized immigrant.
Why We Wrote This
A story focused onMany governments would like to regulate social media giants more closely, but are wary of free speech implications. Three recent court cases offer an alternative route to tighter control – criminal justice law.
French police arrested and charged the owner of Telegram, an encrypted messaging and networking site, on charges of complicity in the distribution of child pornography. And a Brazilian Supreme Court justice ordered the nationwide suspension of X when it did not close a number of accounts the court had ruled should be shuttered.
In all these cases, the authorities have been careful to define their targets narrowly. They have simply ruled on specific violations of their nations’ criminal law.
Their actions have refocused attention on the one major international effort underway to regulate the giant social media sites – the European Union’s 2022 Digital Services Act, which requires online operators to show they are limiting disinformation.
No company has yet been prosecuted under this act. The EU too seems to believe, for now, that the well-targeted use of national law is more impactful.
The gloves are off. And this time, recent dramatic legal rulings suggest, Western governments are boxing clever.
They have been engaged in a long and largely fruitless effort to combat the use of social media networks to promote hate speech, incite violence, or spread politically incendiary lies and conspiracy theories.
That effort continues. But major obstacles stand in the way of the tighter oversight and regulation that governments would like to get from the owners of the most impactful sites such as X and the messaging and networking site Telegram.
Why We Wrote This
A story focused onMany governments would like to regulate social media giants more closely, but are wary of free speech implications. Three recent court cases offer an alternative route to tighter control – criminal justice law.
A key challenge, however, is how to make such regulation compatible with the core democratic principle of free expression.
And that concern is being amplified by voices on the political right – including X’s owner, Elon Musk – who accuse would-be regulators of trying to squelch dissent on important political issues such as the war in Ukraine, climate change, and immigration.
That’s where the recent court rulings – in Britain, in France, and last week in Brazil – could signal a new approach.
Their target has been more narrowly drawn. The judges have simply ruled on specific violations of their own nations’ criminal legislation.
They have, in effect, served notice to tech titans like Mr. Musk and Telegram’s expatriate Russian owner Pavel Durov: You may be enormously wealthy, and your media networks may have hundreds of millions of users worldwide, but inside our own borders, our laws still apply.
In Britain, judges were responding to the worst bout of race rioting for years, which began after a brutal knife attack on a children’s dance class in the seaside town of Southport.
The catalyst for the violence was a claim, originating on X, that the attacker was a Muslim asylum-seeker who had entered Britain illegally from France – none of which was true.
Attacks on mosques and asylum-seekers’ accommodation were soon being organized on other networks, including Telegram.
When Prime Minister Keir Starmer ordered a police crackdown, in which hundreds of people were arrested and prosecuted, Mr. Musk himself weighed in, declaring that “civil war is inevitable” and accusing Mr. Starmer of Soviet-style tactics.
Brushing off that allegation, the prime minister told colleagues to steer clear of engaging with the X boss and focus instead on ensuring swift judgment in the courts for everyone involved in the violence.
And that, it soon became clear, would include more than those who actually rioted.
Others have been arrested, tried, and jailed for their social media posts encouraging violent attacks.
The woman suspected of posting the first false description of the Southport attacker has also been questioned, and released on bail.
France’s legal action two weeks later was even more dramatic.
The authorities arrested Telegram’s owner, Mr. Durov, on his arrival in France, where he is a citizen, and last week an investigating magistrate brought charges against him.
The French, too, have steered clear of the broader principles surrounding content regulation.
The legal charges focused on alleged activity that clearly contravened French criminal law: being complicit in the distribution of images of child sexual abuse, facilitating the operations of organized crime groups, and refusing to share relevant information with law enforcement authorities.
More dramatic yet was the action taken over the weekend in Brazil.
There, Supreme Court Justice Alexandre de Moraes ordered the shutdown of X countrywide – making Brazil the first democratic state to do so.
He, too, emphasized he was merely applying the law, enforcing a court order that X should suspend a number of accounts after Mr. Musk had refused to do so.
Still, the Brazilian case was different in one key respect from the more targeted actions in Britain and France.
That’s because it was about political content. Justice Moraes has been leading a Supreme Court campaign to root out what he describes as online “disinformation, hate speech and attacks on the democratic rule of law”– especially since the refusal of former President Jair Bolsonaro to concede defeat in the country’s 2022 election.
Among the accounts he ordered closed are those of prominent right-wing commentators and legislators – proof, Mr. Musk declared after the shutdown, that “an unelected pseudo-judge in Brazil” was “destroying free speech for political purposes.”
The ongoing tug-of-war in Brazil is a reminder of the political issues Western governments will have to navigate if they’re to regulate content on the giant social media sites.
It has also refocused attention on the one major international effort that is underway: the Digital Services Act, enacted by the 27-nation European Union in 2022.
How effective that will be remains to be seen. But it requires the largest online operators to show how they are limiting disinformation, material endangering women and children, and attempts to manipulate elections – with potential fines in the hundreds of millions of dollars.
For now, however, even the EU seems to view the strict, well-targeted use of national law, on display in Britain and France, as likely to have a more immediate and impactful effect.
Asked to comment on Mr. Durov’s arrest, an EU spokesman hastened to say that the case had nothing to do with the still untested Europe-wide legislation.
“It’s a criminal investigation,” he declared, “based on French criminal law.”
