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Keeping Elon Musk In Check: The Legal Controversies Surrounding Twitter's Free Speech Policies


Source: https://techbriefly.com/2022/12/09/elon-musk-twitter-hotel/


By Chew Khai Xing


Upon the completion of his $44 billion deal to acquire Twitter, Elon Musk posted a tweet that signalled, loudly and clearly, a new era for the platform:


“The bird is freed.”


Ever since then, the platform has witnessed major overhauls in its practices - branding himself as a ‘free speech absolutist’, Elon Musk introduced a subscription-payment scheme that allowed anyone to obtain a ‘verified’ status on Twitter with just $8/month (this was abruptly cancelled due to out-of-control impersonations of public figures), fired the executive team previously in charge of monitoring and censuring hate speech [1], ended the enforcement of a policy against Covid-19 misinformation [2], and reinstated accounts of high profile individuals (such as Donald Trump) previously suspended for propagating misinformation and hate speech.


The effects have been immediate.


As Imran Ahmed, the chief executive of the Centre for Countering Digital Hate, put it - Elon Musk essentially signalled ‘to every kind of racist, misogynist and homophobe that Twitter was open for business…and they have reacted accordingly [3]. Indeed, immediately after the shift of ownership, Twitter saw a nearly 500% increase in the use of slurs against African Americans, an estimated 61% increase in antisemitic posts, and a 58% increase in homophobic remarks [4]. More alarmingly, accounts propagating extremist content previously banned by Twitter such as those associated with ISIS and QAnon have made a resurgence, aided by Musk’s subscription model that previously accorded verified status to such accounts which granted them a veneer of legitimacy [5]. While the platform has seemingly shown a willingness to punish certain hate speech (albeit a very rare one considering that statistics published by ADL show that Twitter went from taking action on 60% of antisemitic tweets to only 30% now [6]) in its ban of Kanye West’s account after the rapper posted a swastika designed to look like a Star of David, this decision seems more like arbitrary enforcement of unclear rules rather than the start of a new platform direction to limit hate speech considering that firstly, part of the decision to ban Kanye stemmed from a personal feud between Musk and Kanye where Kanye shared private conversations between the two without Musk’s consent [7], and secondly, in the light of Musk literally welcoming back several Nazi sympathisers back to the platform.


While Musk has seemingly been able to do what he wants as the owner of the platform, how long will his carefree and unfettered management of the platform be allowed to continue? One looming challenger appears to be the European Commission. Twitter is an existing signatory to the EU’s Code of Practice on Disinformation - a voluntary set of ‘commitments and measures’ platforms agree to apply with the goal of combating the spread of misinformation and disinformation online. The EU Code [8] contains a requirement on the platform to ‘limit impermissible manipulative behaviours and practices’ by having in place (and/or further bolstering) policies against ‘impersonation’; and against ‘the creation and use of fake accounts’ while Commitment 18 of the Code provides that ‘relevant signatories commit to minimise the risks of viral propagation of misinformation or disinformation by adopting safe design practices as they develop their systems, policies, and features’.


Elon Musk’s Twitter has (proudly) breached every single one of them.


From a legal perspective, the terms in the EU Code are not legally enforceable since it is ultimately a voluntary framework that the platform agreed to join under the previous leadership, thereby leaving Musk to violate said commitments without facing any legal consequences. However, this is likely set to change once the Digital Services Act (DSA) - EU’s new flagship digital regulatory framework - fully comes into force. The DSA is a legally-binding set of regulations about online-content governance and responsibility for digital services (which carries fines of up to 6% of global annual turnover for violations), enforced by the European Commission and national authorities and thereby providing a mechanism to hold Twitter liable for its violations of the aforementioned EU Code [9]. Indeed, recent remarks from European regulators and commissioners strongly suggest that the platform will soon face legal challenges for its disregard for misinformation and disinformation regulations - in a recent video call between Thierry Breton (the European commissioner leading the DSA) and Musk [10], Breton has threatened to impose fines or a Europe-wide ban unless Musk adhered to the rules on content moderation including “ditching an arbitrary approach to reinstating banned users, pursuing disinformation aggressively, and agreeing to an extensive independent audit of the platform by next year.” Assuming Musk’s Twitter continues to uphold its ‘absolute free speech’ model, an upcoming regulatory battle appears inevitable.


The next challenge lined up for Musk’s free-speech-centric-Twitter is NetzDG (or ‘Enforcement on Social Networks’ law), a German law requiring social media platforms to promptly respond to and take down illegal hate speech or receive fines of up to €50 million for non-compliance. A German specialist IT law firm, JunIT Rechtsanwälte, has already filed an injunction procedure against Twitter for failing to remove illegal hate speech from the platform as required under NetzDG [11]. With its stringent anti-hate speech laws whereby content with the slightest hints of antisemitism can qualify as illegal hate speech, it is clear that Musk’s tolerance of and refusal to take down hate speech such as antisemitic content on Twitter (evidenced by the statistics published by ADL above) will be seen as a clear violation of NetzDG.


Looking at previous cases of social media platforms breaching NetzDG, Telegram was recently fined €5 million for violating content-moderation requirements (failed to provide mediums for users to report illegal hate speech and appoint a local representative to be served documents with a legally binding effect) [12]. However, the efficacy of mere fines is questionable when it comes to a platform owned by one of the world’s wealthiest billionaires - though a large enough fine might be sufficient incentive for Musk (who vowed to make Twitter profitable when he first acquired the platform) to change course in the light of Twitter’s struggles to generate revenue due to its failed subscription-payment model and the loss of half of its top hundred advertisers [13]. With that being said, assuming the German courts find Twitter to be liable for breaching NetzDG and subsequently imposing a fine, it is unclear whether the punishment can actually be enforced and if Elon Musk will comply with it. In the case of Clearview AI (a US firm fined by European data protection regulators for its illegal facial recognition database), the firm has maintained that it did not breach any rules, and has gone so far as to argue that said European laws do not apply to its firm) [14].


Aside from resorting to fines, German regulators have other tools at their disposal - for example, issuing a nationwide ban on the platform. However, not only would imposing an outright ban be politically unpopular (and provide an opportunity for Musk to paint this as governmental abuse of censorship that further lends credence to his claims of free speech being stifled and thus the need for a free-speech-centric platform), the practicality of it is in question too since such bans are easily circumvented by the use of VPNs.


How would Twitter fare in other jurisdictions assuming a claim is brought against them? Turning to India, in the case of In Re Prashant & Anor, Suo Motu Contempt Application 2020 [15], Twitter was absolved of liability for the defamatory tweets posted by an online third-party user. The justification was that Twitter simply acted as an intermediary as defined under the Information Technology Act 2000 and did not exercise any editorial control over the online content posted on the platforms. It is probable that Musk may employ a similar defence - that the platform does not offer content and merely act as a display board where users freely express their ideas without any interference nor input channelled from the platform managers - to absolve himself and the platform from liability if faced with similar lawsuits (though the effectiveness of it would likely vary across different jurisdictions).


Overall, while the future of the platform is fraught with uncertainty, one thing remains certain: the upcoming slew of legal challenges and lawsuits that the platform and management will inevitably have to deal with. And if Thierry Breton’s famous reply to Musk’s tweet - “In Europe, the bird must fly by the EU’s rules [16]" - is anything to go by, Musk and the platform will have to brace itself for a challenging year ahead.






References

[1]: Anyanwu, Rashawn Ray and Joy. 2022. “Why Is Elon Musk’s Twitter Takeover Increasing Hate Speech?” Brookings. November 23, 2022, from https://www.brookings.edu/blog/how-we-rise/2022/11/23/why-is-elon-musks-twitter-takeover-increasing-hate-speech/.

[2]: BBC News. 2022. “Twitter Ends Covid Misinformation Policy under Musk,” November 30, 2022, sec. Technology, from https://www.bbc.co.uk/news/technology-63796832.

[3]: Darcy, Oliver. 2022. “Hate Speech Dramatically Surges on Twitter Following Elon Musk Takeover, New Research Shows | CNN Business.” CNN. December 2, 2022, from https://edition.cnn.com/2022/12/02/tech/twitter-hate-speech/index.html.

[4]: Frenkel, Sheera, and Kate Conger. 2022. “Hate Speech’s Rise on Twitter Is Unprecedented, Researchers Find.” The New York Times, December 2, 2022, sec. Technology, from, https://www.nytimes.com/2022/12/02/technology/twitter-hate-speech.html.

[5]: Frenkel, Sheera, and Kate Conger. 2022. “Hate Speech’s Rise on Twitter Is Unprecedented, Researchers Find.” The New York Times, December 2, 2022, sec. Technology, from https://www.nytimes.com/2022/12/02/technology/twitter-hate-speech.html.

[6]: BBC News. 2022. “Twitter Charity Partners Condemn Musk’s ‘Dangerous’ Changes,” November 21, 2022, sec. Technology, from https://www.bbc.co.uk/news/technology-63710997.

[7]: “Ye West Banned from Twitter for Posting Swastika and Texts with Musk.” 2022. Gizmodo. December 2, 2022, from https://gizmodo.com/kanye-west-elon-musk-banned-twitter-swastika-nazi-texts-1849845316.

[8]: Lomas, Natasha. 2022. “Who’ll Get the Last Laugh over Musk Toying with Twitter’s Veracity?” TechCrunch. November 10, 2022. https://techcrunch.com/2022/11/10/elon-musk-twitter-verification-disinformation/.

[9]: Pirkova, Eliska. 2022. “The Digital Services Act: Your Guide to the EU’s New Content Moderation Rules.” Access Now. July 6, 2022. https://www.accessnow.org/digital-services-act-eu-content-moderation-rules-guide/.

[10]: Financial Times. 2022. “EU and US Turn up the Heat on Elon Musk over Twitter,” November 30, 2022. https://www.ft.com/content/a07ca1ae-9f9a-46ee-9457-27bb30e18ed2.

[11]: Lomas, Natasha. 2022. “Musk’s Impact on Content Moderation at Twitter Faces Early Test in Germany.” TechCrunch. November 21, 2022. https://techcrunch.com/2022/11/21/elon-musk-twitter-netzdg-test/.

[12]: “Germany Slaps Messaging App Telegram with $5 Million Fine.” 2022. AP NEWS. October 17, 2022. https://apnews.com/article/technology-middle-east-business-germany-dubai-aeff487f20d5b2da2bf73b76a32310f8.

[13]: Nast, Condé. 2022. “Why I Quit Elon Musk’s Twitter.” The New Yorker. November 27, 2022. https://www.newyorker.com/news/daily-comment/why-i-quit-elon-musks-twitter.

[14]: “Why Regulators Can’t Stop an AI Company That Scraped Billions of Photos.” n.d. Time. https://time.com/6182177/clearview-ai-regulators-uk/.

[15]: “Critical Analysis: In Re: Prashant Bhushan & Anr. [Suo Motu Contempt Petition (CRL) No. 1 of 2020] -.” 2021. Lawwallet.in. July 17, 2021. https://lawwallet.in/critical-analysis/?utm_source=rss&utm_medium=rss&utm_campaign=critical-analysis.

[16]: “EU Commissioner Warns Musk Twitter Must ‘Fly by Our Rules’ (1).” n.d. News.bloomberglaw.com. Accessed December 6, 2022. https://news.bloomberglaw.com/privacy-and-data-security/eu-commissioner-warns-musk-that-twitter-must-fly-by-our-rules.

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