Under Europe’s Digital Services Act (DSA), illegal content and disinformation are defined as follows:
1. Illegal Content
The DSA requires online platforms to take action against illegal content, which is defined based on EU and national laws. This includes, but is not limited to:
• Hate speech (inciting violence or hatred based on race, religion, gender, etc.).
1. Hate Speech
Definition
The EU defines hate speech as content that incites violence, hatred, or discrimination against a group or individual based on protected characteristics such as:
• Race or ethnicity
• Religion or belief
• Gender or sexual orientation
• Disability
• Nationality
Legal Basis in the EU
The Framework Decision on Combating Racism and Xenophobia (2008) sets the baseline for EU hate speech laws. It criminalizes:
-
Public incitement to violence or hatred, including on social media.
-
Public denial, trivialization, or justification of genocide, war crimes, or crimes against humanity (e.g., Holocaust denial).
-
Distributing racist or xenophobic material (e.g., Nazi propaganda).
DSA’s Role in Hate Speech Regulation
• Platforms must have clear policies for reporting and removing hate speech.
• Large platforms (45 million+ EU users) must assess risks related to hate speech and mitigate them.
• Failure to address hate speech reports can lead to fines up to 6% of global revenue.
Controversy & Challenges
• What qualifies as hate speech varies by country (e.g., France has strict hate speech laws, while the U.S. protects most speech under the First Amendment).
• Critics argue that platforms might over-censor to avoid penalties, impacting free expression.
• Terrorist content (promotion or glorification of terrorism).
• Child sexual abuse material (CSAM).
• Intellectual property violations (piracy, counterfeit goods).
• Fraud and scams (fake ads, financial fraud, phishing).
• Defamation (when violating national laws).
• Illegal product listings (such as unsafe or banned goods).
Platforms are not required to remove content unless it is deemed illegal under EU or national law, but they must have clear mechanisms to report and handle it.
2. Disinformation
The DSA does not ban disinformation outright but requires large online platforms to mitigate the risks associated with systematic manipulation. Disinformation is described as:
• Deliberately false or misleading content spread to deceive the public.
• Coordinated campaigns to influence public opinion (especially regarding elections, public health, or security).
• Deepfakes or manipulated media that deceive users.
Platforms’ Responsibilities on Disinformation:
• Risk Assessments: Platforms must evaluate how their systems contribute to disinformation.
• Transparency Requirements: Platforms must disclose how content moderation and recommendation algorithms function.
• Fact-Checking & Labeling: Platforms may be required to label misleading content.
• Crisis Response Mechanism: The EU can enforce stricter measures during emergencies (e.g., pandemics, war-related disinformation).
Key Takeaways
• Illegal content is removed based on existing laws (DSA does not create new laws).
• Disinformation is regulated through transparency and mitigation efforts, not outright bans.
• Platforms must have mechanisms for users to report illegal content and disinformation.
• Failure to comply can result in fines of up to 6% of a company’s global revenue.
2. Defamation
Definition
Defamation is false information that harms the reputation of an individual or entity. It typically includes:
• Libel (written defamation, e.g., false news articles, social media posts).
• Slander (spoken defamation, e.g., false accusations in videos).
Legal Basis in the EU
Unlike hate speech, defamation laws are primarily governed by national laws, not by an overarching EU directive. However, many EU countries consider it a civil or criminal offense, with variations in penalties:
• Germany: Criminal defamation can result in fines or up to 5 years in prison (if against public officials).
• France: Defamation can lead to fines of up to €45,000 for individuals and higher for media organizations.
• UK (before Brexit): The Defamation Act 2013 limited lawsuits to cases where “serious harm” was proven.
DSA’s Role in Defamation Regulation
• Platforms must provide clear notice-and-action mechanisms to report defamatory content.
• Users have the right to appeal content moderation decisions if a platform removes or fails to remove defamatory content.
• No obligation for platforms to proactively filter defamation (they act based on user reports or legal action).
Challenges & Criticisms
• Determining defamation is often complex and may require court rulings.
• Risk of Strategic Lawsuits Against Public Participation (SLAPPs): Powerful individuals or companies may use defamation claims to silence journalists or critics.