Freedom of speech is a fundamental value in democracy, without which this system cannot function properly. In turn, in the last decade, the Internet has become a place serving as a “virtual agora” where everyone can express their opinion within the limits defined by the portal. When making changes in the law in the area of social media content, it is necessary for the legislator to be particularly sensitive to cases of arbitrariness and excessive power of state bodies.
Last year, in the countries ruled by populist leaders, attempts to influence the social-media content through laws have intensified. The state began to interfere in the removal of content from the Internet in Russia and Brazil, among others.
Attempts to regulate social media for the sake of limiting harmful content have already been made in Germany and France, among others. Such regulations can become dangerous for democracy in countries with weakened rule of law.
The negative effects of the new regulations, which in Germany and France have been limited by an effective legal system and political culture, in Russia this has become an instrument for fighting and intimidating the opposition with similar wording of the legal norms themselves.
The Digital Services Act regulation, which is currently being drafted as part of the EU legislative process, will impose new obligations on member states to regulate social media, including content moderation. These powers should be assigned to professional and independent bodies and their decisions should be fully appealable.
The idea of the Ministry of Justice to establish a “Council for Freedom of Speech”, which would have the discretion to modify the decisions of social networks to remove content, is completely misguided. Such a body would be susceptible to politicization and could easily become a source of threats to freedom of speech and equality of citizens before the law.
A much safer and more appropriate direction is to facilitate civil litigation for breach of contract with a social networking platform.