Brussels – It was the prime suspect, and it comes as no surprise that the first formal infringement proceeding initiated by the EU Commission as part of its compliance with the Digital Services Act (DSA) is aimed squarely at Elon Musk‘s platform. The EU executive announced today (Dec. 18) that it has initiated an infringement proceeding to assess whether X has violated the provisions of the Digital Services Act in several risk management areas, from content moderation to dark patterns, advertising transparency, and access to data for researchers.
The EU executive’s decision is based “on the preliminary investigations conducted so far,” most recently on the diffusion of illegal content in the context of the Hamas-Israel war. As announced by the EU Commission, the procedure will focus on four main areas: compliance with the expected obligations countering the dissemination of illegal content (including the notification and action mechanism), the effectiveness of measures to combat information manipulation including in the context of electoral processes (the so-called Community Notes), the deficiencies on data access for researchers overseeing the transparency of the platform, and finally the “suspicion of misleading user interface design.” This last point refers to so-called “blue ticks” that are now linked to the payment of a subscription and not to actual user verification.
At this point, the Berlaymont services will continue to gather evidence on these four areas of a potential violation of the Digital Services Act provisions, with further requests for information, interviews and inspections, and in parallel take interim measures and non-compliance decisions. “The initiation of formal infringement proceedings does not prejudge their outcome,” the Commission points out, noting that the DSA does not set any legal deadline for the conclusion of formal proceedings. The length of the investigation may depend on factors such as the complexity of the case and the extent to which X will cooperate with commitments to remedy the issues in the proceedings. “If the violations are confirmed, there will be sanctions; we take any violation of our rules very seriously,” made it clear the EU Commission’s Executive Vice President for Digital and Competition Commissioner Margrethe Vestager. After coming into force at the end of last year, as of August 25, X is on the list of 19 digital platforms that must comply with obligations provided for in the Digital Services Act. Failure to do so will result in fines of up to 6 percent of global turnover: in 2021 Twitter’s turnover was about $5 billion and the maximum possible penalty would therefore be around $300 million.
Beyond the Digital Services Act. The EU vs Musk saga
Since November last year, Musk’s company decided to stop assessing disinformation related to COVID-19, effectively exiting the European reporting program on Big Tech’s responsibility in spreading news related to the pandemic and vaccination campaign. The decision to stop releasing reports on the measures implemented to combat disinformation has been defined by the EU Commission Vice-President in charge of Digital, Věra Jourová, as “the path of confrontation” followed by the U.S. tycoon. In this context, an enormous controversy arose from last April’s decision to no longer label media controlled by authoritarian regimes such as Russia, China, Iran, and propaganda agencies as “state-affiliated media”, as well as the end of the ban on automatic promotion or recommendation to users of their content.
In December last year, the von der Leyen Cabinet had threatened sanctions as a result of the arbitrary suspension of accounts of several journalists dealing with technology and being highly critical of new owner Musk. Only a month earlier, the Commission had spoken against the temporary (but ongoing) closure of the European office in Brussels, in particular for the consequences in terms of the U.S. platform’s implementation of the EU Code of Conduct on Disinformation and the new Digital Services Act. Finally, last October 10, a harsh exchange had been staged right on X between Commissioner Breton and the platform owner: “Dear Mr. Musk, as a result of the terrorist attacks carried out by Hamas against Israel, we have had indications that your platform is being used to spread illegal content and disinformation in the EU,” had been the warning from cabinet member von der Leyen.
English version by the Translation Service of Withub
