Note: This article has been translated in English by an automated tool. A lot has happened since Elon Musk made a dramatic entrance into Twitter headquarters wearing a sink. After laying off a large part of the company's staff, Musk radically altered moderation practices, adopting an unstable, hard-to-read strategy of provocations and "com stunts". After announcing that important decisions on content or account reinstatement would be taken by a content moderation council, he abandoned this idea and launched polls on his Twitter account, inviting users to vote on sensitive issues such as whether Donald Trump's account should be reinstated, whether Twitter should offer a "general amnesty" to suspended accounts, or whether the accounts of recently suspended journalists should be immediately reinstated.
Musk thus restored Trump's account but also the accounts of many extremists, including far-right influencers and people associated with QAnon ideology. We can also cite, in respect of its remarkable and controversial decisions, the choice to no longer fight against covid 19 misinformation or the provision of numerous personal data to journalists within the framework of the publication of “ Twitter files“, intended to question the moderation practiced by the former management of Twitter.
For several weeks now, Musk's decisions, sudden, brutal, sometimes contradictory, have been cause for concern. Emmanuel Macron described as " big problem » the decision to put an end to the fight against misinformation linked to Covid. He then met Musk in New Orleans: "Transparent user policies, significant reinforcement of content moderation and protection of freedom of expression: efforts must be made by Twitter to comply with the European regulations", tweeted the President immediately after the meeting.
It is now Musk's decision to suspend for 7 days, without warning or explanation, the accounts of half a dozen journalists from CNN, the New York Times, the Washington Post and other media outlets, which is sparking amazement and indignation. If these accounts have been restored following a survey carried out on Twitter, the methods of decision-making of the whimsical Musk question. The question therefore arises as to whether Twitter's moderation methods could give rise to sanctions from the competent regulators.
1. Can Twitter be sanctioned in the United States? No
At this time, it does not appear that the American rules applicable in terms of content moderation can make it possible to sanction Twitter for decisions to suspend users suddenly, even if they are journalists, even if these appear arbitrary. It is generally accepted that the First Amendment to the Constitution allows platforms, which enjoy a right to freedom of expression, to moderate at their discretion the content posted on their site. Twitter also benefits from the immunity provided by section 230 of the Communications Act of 1934 (47 USC §230), according to which social networks that engage in moderating activities do not incur liability.
However, it may be noted that the moderation conditions must be provided for in the conditions of use that contractually bind the social network. But in this case, Musk relies, to suspend the accounts of journalists, on a new rule adopted a few days ago, which proscribed from now on any publication aiming to disseminate location data in real time. On this basis, Twitter began by suspending the @ElonJet account, which used public flight data to share the location of Musk's private plane, before suspending a number of journalists following the subject for their news outlet. . The reason given is that these journalists allegedly contributed to the dissemination of whereabouts information concerning him, which is disputed by interested parties. Musk invokes, in this regard, security concerns, in particular concerning his in family, following an incident involving her two-year-old son.
By suddenly suspending journalists, Musk, who presents himself as an “absolutist” of freedom of expression, seems in complete contradiction with himself. It also violates state law. SB 7072 voted in Florida at the initiative of Governor De Santis, whom Musk says he supports, which prohibits platforms from removing or limiting press publications on the basis of their content and obliges them to moderate content “consistently”. It is true that most of the provisions of this law were censured by the Court of Appeals for the 11th Circuit (NetChoice v. moody) on the grounds that they are inconsistent with the First Amendment. Seized by the Attorney General of Florida, the Supreme Court of the United States must precisely decide soon on the question of whether or not the First Amendment allows platforms to be forced to host content they do not want. It will therefore be up to the Supreme Court to answer this question and decide if SB 7072 complies with the First Amendment. In the current context, this decision of the Supreme Court is more than ever awaited.
2. Could Twitter be sanctioned by the European authorities? Certainly not immediately
Vera Jourova, Vice President of the Values and Transparency Commission, recalled this morning in a tweet the need to respect freedom of the press and the possibility of sanctioning those who violate freedoms. In this regard, it invoked the Media Freedom Act and the Digital Services Act.
Beyond the fact that the contested moderation decisions concern American journalists, it should be noted that the Media Freedom Act (European Media Freedom Regulation) is currently only a proposal published on 16 September 2022. This text contains provisions intended to promote media pluralism and independence in the EU, and in particular to better protect the press against the unjustified removal of online content. However, it has not yet been adopted.
Rest of the Rules Digital Services Act. On this subject, Thierry Breton, the European commissioner for the internal market, recently affected Musk's decisions, which he considers arbitrary and contrary to the Rules (on the obligations provided for by the DSA, see this ticket). However, the Digital Services Act, although it came into effect on November 16, does not yet apply to Twitter. Online platforms like Twitter currently have until February 17, 2023 to notify the European Commission of the number of active end users on their site. If this number is equal to or greater than 45 million (which is the case for Twitter), they will be qualified as Very Large Online Platforms by the European Commission, which will oblige them to comply with the obligations set out in the DSA within 4 months of being designated as such by the Commission. The obligations provided for by the DSA will therefore have to be effectively respected by Twitter at the earliest next summer and at the latest by the end of 2023.
Once the DSA does apply to Twitter, it will be possible for the Commission (which will have jurisdiction over the biggest platforms alongside national regulators) to issue fines of up to 6% of its figure. global business. On the other hand, the possibility of seeing Twitter then “banned” from the European Union must be strongly relativized. The DSA simply provides (Article 82) that the Commission may, in the event of a serious and persistent breach, request the competent regulator (here the Irish regulator) to seize the judge to ask him to order the temporary restriction of user access to the platforms (Article 51(3)). However, this is only possible under certain conditions, and in particular if it is established that we are dealing with criminal offenses involving a threat to the life or safety of persons (Article 51, paragraph 3, point b)). To “ban” Twitter from Europe, all of these conditions would therefore have to be met, which is unlikely and would only result in a temporary restriction of access.
3. Could Twitter be sanctioned in France? Maybe
If Elon Musk carried out such brutal suspension measures against French users, and in particular journalists, it is likely that the regulatory authority for social networks, theARCOM would intervene. She has the right. Indeed, the French legislator, anticipating the adoption of the DSA, adopted, during the summer of 2021, law n° 2021-1109 of August 24, 2021 "consolidating respect for the principles of the Republic", which introduces in advance into French law a large number of provisions to be included in the European Regulation (in particular article 6-4 of the law for confidence in the digital economy (LCEN)). These legislative provisions are currently in force in France, pending the effective implementation of the DSA. They will apply until 31 December 2023 at the latest. ARCOM has, in this regard, recently published guidelines which are intended for the largest platforms.
However, these provisions apply to Twitter. They target, in fact, social network platforms whose activity on French territory, whether or not they are established on French territory, exceeds 10 million unique visitors per month (article 6-4. I LCEN), which is the case with Twitter. The social network must, by law, refrain from taking measures that are arbitrary, disproportionate, or non-appealable. The law provides in particular that decisions to delete content must be reasoned (article 6-4 I 7° LCEN) and that decisions to suspend or terminate accounts must be proportionate and justified by repeated abuses, the seriousness and consequences of which must be established (article 6-4 I 9° LCEN). In addition, suspensions must be preceded by prior warning to the user and be of reasonable duration. And moderation decisions should always be open to challenge. ARCOM could undoubtedly intervene if it appears that Twitter does not respect these principles against French users.
It could be objected that ARCOM is not competent since the main establishment of Twitter (Twitter International Company) is located in Ireland. In the European Union, the competent regulator is that of the Member State in which the supplier concerned has its principal establishment, therefore here the Irish authority. The French law of 2021, however, made an exception, on a temporary basis, to this European rule known as the one-stop shop, and gives competence to ARCOM until the effective implementation of the DSA. If this temporary exception has aroused the reservations of the European Commission, it is nonetheless very real.
In fact, ARCOM has already expressed its deep concern as to "Twitter's ability to maintain a safe environment for users of its service" in a context where the social network has terminated the contract of approximately 75% of the 1867 contract workers employed in moderation worldwide (according to the ARCOM estimate). In an official letter, ARCOM at the end of November asked Twitter to provide detailed information on its moderation practices and the human and technological resources it devotes to it. If ARCOM did not need here to resort to a formal notice, the fact remains that the amount of the sanction imposed in the event of refusal to provide the requested information can go up to 1% of the total worldwide annual revenue for the previous financial year. In addition, in the event of a proven violation of French law, ARCOM may send Twitter a formal notice to comply with the law, then impose a penalty of up to 20 million euros or 6% of the total worldwide annual turnover for the previous financial year, whichever is higher (Art. 62.-I of law no. 86-1067 of September 30, 1986 on freedom of communication).
One could therefore imagine, in the event of a decision to suspend French journalists, that not only could they go to court but also that ARCOM would examine Twitter's practices under French law. The fact remains, to return to the reasons that justified the suspensions recently decided by Musk, that the French Penal Code punishes by three years' imprisonment and a fine of 45000 euros the fact of revealing, disseminating or transmitting information allowing to locate a person "for the purpose of exposing him or the members of his family to a direct risk of harm to the person or property that the author could not ignore" (article 223-1-1 Criminal Code ).