You have just joined the EUI Department of Law as a Max Weber Fellow. Could you tell us more about the research you will be conducting?
I will focus on how the European Union and member states are implementing the Digital Services Act (DSA), which entered into full effect in February 2024 and assigns obligations to all types of online services involved in the internet infrastructure, such as telecoms, cloud services, search engines, e-commerce, and social media. These obligations involve, among other things, creating a system of notice and action for things such as content removal, as well as incorporating the mitigation of risk to third parties to their products. More specifically, I am interested in how the various agents involved in enforcing the DSA within EU member states and the European Commission will compete or cooperate to shape its interpretation and application and, ultimately, the speech rights of people across Europe.
Are there differences between regulating speech rights online and offline?
States have at least three types of challenges that were intensified by the migration from offline to online speech: privatisation of speech governance, cross-border speech, and issues of scale.
First, private firms, many of them located in the US, are responsible for a large part of the governance of online speech. If someone says something offensive offline about someone else, they can try to resolve it amicably or in court. But when it comes to online speech, the platforms are also involved. They have their own rights in governing their services and are also technically responsible for enforcing most decisions. So, while this displacement from public to private functions increases individuals’ ability to reach a broad audience, it can also reduce people’s ability to claim their rights.
Second, large amounts of online speech can easily cross jurisdictional borders, potentially creating conflicts of authority. This raises issues of which law is applicable, what the geographical scope of any legal remedies, such as content removal, should be, and whether and how different polities should cooperate with the decisions of other states.
Finally, the problem of scale refers to the volume and speed of online speech, which makes it considerably harder to deal with speech harms by dealing with individual cases and subjecting them to due process rights common in courts. This creates pressure to change the legal regime, so it deals with the risk of harm before any injury has, in fact, occurred. The issue is not only that courts have a hard time acting at the appropriate speed, but that legal doctrines governing speech also tend to disfavour regulation before the fact.
Based on your research, do you believe the Digital Services Act will address some of these challenges?
The DSA, among other things, assigns duties to social media platforms to restrict illegal content under EU and member state laws. It distributes authority among the European Commission and national Digital Services Coordinators to monitor and enforce those rules. Ultimately, it aims to foster cooperation between regulators and regulated entities, while considering the general risk of harm to others.
However, there are questions about how this distribution of authority, combined with the EU's prolific regulatory activity in the digital realm, may increase uncertainty and empower large tech firms, which can exploit this complexity. It will also be interesting to see how the DSA does in terms of harmonisation amongst EU member states and how firms will try to leverage the multiplicity of enforcement agents to their favour.
What is the landscape of online speech regulation in Europe and around the world?
Online speech can be highly political and polarising because it refers to people’s understanding of themselves and the world. It also affects core political interests of elites in power. Take, for example, far-right parties in Europe. European and national regulators may face the dilemma of enforcing the law in controversial cases against actors who are becoming increasingly popular and whose discourse is central to their political appeal.
Brazil – where I am from – is also a remarkable case. The Supreme Court is leading legal enforcement against social media platforms through judicial decisions, which is unusual. This has created contradictions: You need to act quickly due to the speed and volume of speech, but that is not very compatible with an extensive right to due process. We are now debating whether the Supreme Court should continue to have extensive authority to restrict online speech by, for example, suspending platforms - as has been recently done with X.
Elon Musk is also a very interesting case. It is the first time that an owner of an online platform is openly, explicitly, and directly supporting a presidential candidate in the US elections, and he happens to control a large communication infrastructure. The US legal system also gives him a lot of liberty should he want to manipulate content moderation to benefit a specific candidate. He has also been very adversarial against other democratic polities, such as the EU and Brazil, that are trying to regulate platforms.
During your research, have you observed any influence of the DSA on legislation elsewhere?
There is currently no evidence that the DSA has impacted how platforms operate outside Europe by what some call the "Brussels Effect". Platforms seem to have restricted most of the Act's implementation to the EU and, in fact, have openly offered different services to EU customers. Many firms have also criticised laws directed at the digital economy and do not seem to implement them in other countries, unless they are left with no alternative.
Rafael Bezerra Nunes holds a Master of Laws from Yale Law School, where he is also a J.S.D. Candidate. He is a fellow at the EUI’s Max Weber Programme for Postdoctoral Studies, the largest international postdoctoral programme in the social sciences and humanities in Europe. He is affiliated with the EUI Department Law.