Will Elon Musk put Twitter on a collision course with global speech regulators?

Elon Musk joked earlier this month that he hoped buying Twitter won’t be too painful for him. But the self-proclaimed “free speech absolutist” may indeed be inviting a world of pain for himself (and his wallet) if he sets the platform on a collision course with the growing mass of legislation now being applied to social media services all around the world.

The US lags far behind regions like Europe when it comes to digital rule-making. So Musk may simply not have noticed that the bloc just agreed on the fine detail of the Digital Services Act (DSA): A major reboot of platform rules that’s intended to harmonize governance procedures to ensure the swift removal of illegal speech, including by dialling up fines on so-called “very large online platforms” (aka, VLOPs; a classification that will likely apply to Twitter) to 6% of global annual turnover.

On news of Musk’s winning bid for Twitter, EU lawmakers were swift to point out the hard limits coming down the pipe.

“The Commission can fine [non-compliant platforms] 6% of worldwide turnover,” emphasizes MEP Paul Tang, discussing why he believes the DSA will be able to rein in any more absolutist tendencies Musk may have.

“Given the profit margin currently for Twitter that is a lot — because the net profit margin in negative, that’s the reason why he bought it in the first place I assume… It doesn’t make a profit and if it makes a profit it will be chipped away by the penalty. So he really has to find ways to make it more profitable to make sure that the company doesn’t lose money.”

Tang also points out that Musk’s $43BN bid for Twitter is financed, in large part, with loans — rather than him just cashing in Tesla equity to fully fund the bid, which means Musk is not as free to act on his impulses as he may otherwise have been.

“He’s in debt. He needs to pay his debts — his creditors… If he’d used all his equity to buy Twitter then he would have had more leeway, in a sense. He could take any loss he wants — up to a point, depending on the value of Tesla. But he’s in debt now, in this construction, so at least he has to pay for the interest — so the company needs to make a profit. And even more than before, I think.”

“It’s 6% for every failure to comply. It would be an expensive hobby,” agrees MEP Alexandra Geese, dismissing the idea that the billionaire will just view any DSA fines as the equivalent of ‘parking tickets’ to be picked off and flicked away.

As well as headline fines of up to 6% for breaches of the regulation, repeated failures by a Musk-owned Twitter to comply with the DSA could lead to the European Commission issuing daily fines; suing him for non-compliance; or even ordering a regional block on the service.

Article 41(3) of the regulation sets out powers in the event of repeated, serious infringements which — per snippets of the final text (still pending publication) we’ve seen — include the ability to temporarily block access to a service for four weeks, with the further possibility that that temporary ban could be repeated for a set number of times and thus prolonged for months, plural.

So even if Musk’s fortune (and inclination) were to extend to regularly shelling out for very large fines (up to hundreds of millions of dollars on current Twitter revenue) he may have harder pause about taking a course of ‘free speech’ action that, de facto, limits Twitter’s reach by leading to the service being blocked across the EU — since he claims he’s buying it to defend it as an important speech forum for human “civilization”. (Assuming he’s not narrowly defining that to mean ‘in the U.S. of A.’.)

While the full spectrum of the DSA isn’t due to come into force until the start of 2024, rules for VLOPs have a shorter implementation period — of six months — so the regime will likely be up and running for platforms like Twitter in early 2023.

That means if Musk wants to — shall we say — ‘fuck around and find out’ how far he can push the needle on speech absolutism across the EU, he won’t have very long before the Commission and other regulators are empowered to come calling if/when he fails to meet their democratic standard. (In Germany, there are already laws in place for platforms: The country has been regulating hate speech takedowns on social media since 2017 — hence the ‘joke’ has long been that if you want a de-nazified version of Twitter you just change your country to ‘Germany’ in the settings and your Twitter feed will instantly become fascist-free.)

The DSA puts a number of specific obligations on VLOPs that may not exactly be front of mind for Musk as he celebrates an expensive new addition to his company portfolio (albeit, still pending shareholder approval) — including requiring platforms to carry out risk assessments related to the dissemination of illegal content; to consider any negative impacts on fundamental European rights such as privacy and freedom of expression; and look at risks of intentional manipulation of the service (such as election interference) — and then to act upon these assessments by putting in place “reasonable, effective and proportionate” measures to combat the specific systemic risks identified; all of which must be detailed in “comprehensive” yearly reports, among a slew of other requirements.

“An ‘Elonised’ version of Twitter would probably not meet the DSA requirements of articles 26-27,” predicts Mathias Vermeulen, public policy director at the digital rights agency AWO. “This can lead to fines (which Musk doesn’t care about), but it could lead to Twitter being banned in the EU in case of repeated violations. That’s when it really gets interesting: Would he change his ideal vision of Twitter to preserve the EU market? Or is he prepared to drop it because he didn’t buy this as a business opportunity but to ‘protect free speech in the US’?”

The UK, meanwhile — which now sits outside the bloc — has its own, bespoke ‘harms mitigating’ social media-focused legislation on the horizon. The Online Safety Bill now before the country’s parliament bakes in even higher fines (up to 10% of global turnover) and adds another type of penalty into the mix: The threat of jail time for named executives deemed to be failing to comply with regulatory procedures. (Or, put another way, trolling the regulator won’t be tolerated; they’re British… )

Is Musk willing to go to jail over a maximalist conception of free speech? Or would he just avoid ever visiting the UK again — and let his local Twitter execs do the time and take the lumps?

Even if he’s willing to let his staff languish in jail, the UK’s draft legislation also envisages the regulator being able to block non-compliant services in the market — so, again, if Musk kicks against local speech rules he’ll face trading off limits on speech on Twitter with limits on Twitter’s global reach.

“This is not a way to make money,” Musk said earlier this month of its bid for Twitter. “My strong intuitive sense it that having a public platform that is maximally trusted and broadly inclusive is extremely important to the future of civilization. I don’t care about the economics at all.”

“I think he doesn’t understand quite how big a fight he’s in for, nor how complex free speech is in practice. It’s going to be interesting to watch!” says Paul Bernal, a UK-based professor of IT law at the University of East Anglia. “The big risk (as ever) is that he fails to understand that his own experience of Twitter is very different from what happens to other people.”

Elsewhere, a growing number of countries are setting their own local restrictions and ramping up operational risks for owners of speech fencing platforms.

This includes a growing number of autocratic (or autocratically leaning) regimes that are actively taking steps to censor the Internet and restrict access to social media — countries such as Russia, Turkey, India or Nigeria — where platforms that are ‘non-compliant’ with state mandates may also face fines, service shut downs, police raids and threats of jail time for local execs.

“A platform might be able to get away with free-speech absolutism if it restricted its operations to the United States with its specific and peculiar first amendment tradition. But most platforms have 90% or more of their users outside the US, and a growing number of governments around the world, both democratic and less so, increasingly want to influence what people are and are not allowed to see online. This goes for the European Union. It clearly goes for China. It also goes for a number of other countries,” says Rasmus Kleis Nielsen, a professor of political communication and director at the Reuters Institute for the Study of Journalism at the University of Oxford.

“Saying ‘I’m for free speech’ is at best a starting point for how private companies can respond to this. If you are rich enough, you can maybe soak up the fines some governments will impose on companies that in the name of free speech (or for other reasons) refuse to do as they are asked to. But in a growing number of cases the next steps include for example going after individual company employees (Indian police has raided local Twitter offices), forcing ISPs to throttle access to a platform (as Turkish government has done), or ultimately block it entirely (as Nigerian government has done).

“So while in the United States, a platform that conducts content moderation on the basis of simplistic slogans will primarily face the fact that free speech is more complicated and ambiguous in practice than it is in theory, and that both users and other customers like advertisers clearly see that and expect companies to manage that complexity as clearly, consistently, and transparently as possible, in the rest of the world every platform will — if it wants to do business — face the fact that governments increasingly want to influence who gets to say what, where, and when.

“And that they (at best through independent judiciary and independent regulators, at worst directly through the executive branch), not individual proprietors or private companies, will want to decide what should and should not be free speech.”

Nothing Musk has said or done suggests he has anything other than a US-centric understanding of ‘free speech’. And that he therefore has a limited understanding of the scope of speech restrictions that can, legally, apply to Twitter — depending on where in the world the service is being used. And the prospect of Musk owning Twitter can’t change any actual laws around speech — however much he makes striking statements equating his ownership to the ‘defence of human civilization’.

Away from the (relatively clearly defined) line of illegal speech, perhaps most obviously (and depressingly), Musk having an overly simplistic understanding of ‘free speech’ could doom Twitter users everywhere to a ‘Groundhog Day’ style repeat of earlier stumbles — when the company’s (US-centric) operators allowed the platform to steep in its worst users’ bile, professing themselves “the free speech wing of the free speech party” while victimized users were essentially censored by the loudest bullies.

It still feels like the very recent past (actually it was circa 2018!) when Twitter’s then CEO and co-founder, Jack Dorsey, appeared to have a micro epiphany about the need for Twitter to factor in “conversational health” if it wanted anyone other than nazis to stick around on its platform. That in turn led to a slow plod of progress by the company to tackle toxicity and improve tools for users to protect themselves from abuse. (And, very latently, to a ban on ‘king’ Twitter bully, Donald Trump.)

A free speech absolutist like Musk — who is expert at using Twitter to bully his own targets — threatens to burn all that hard won work right back down to ground zero.

But, of course, if he actually wants the world to want to hang out in his town square and talk that would be the polar opposite of a smart strategy.

Musk may also try to turn his bullying on international regulators too, of course. He has (in)famously and publicly clashed with US oversight bodies — repeatedly trolling the SEC, via Twitter (ofc) — including tweeting veiled insults which pun on its three letter acronym. Or recently referring to it (or at least some of its California staff) as “those bastards”, in reference to an investigation it had instigated when he tweeted about wanting to take Tesla private.

Musk’s demonstrable rage and discomfort at the SEC’s perceived regulation of his own speech — and his open contempt for a public body whose job it is to police long-standing rules in areas like insider trading — doesn’t exactly bode well for him achieving friction-free relations with the long list of international oversight bodies poised to scrutinize his tenure at Twitter. And with whom he may soon be openly clashing on Twitter.

If he’s not yet taking tweet pot shots at these ‘bastards’ it’s likely because he doesn’t really know they exist yet — but that’s about to change. (After all, EU commissioners are already tweeting Musk to school him on how “quickly” he’ll “adapt” to their “rules”, as internal market commissioner Thierry Breton put it earlier today… Touché!)

The Commission will be in charge of the oversight of VLOPs under the DSA once it’s in force — which means the EU’s executive body will be responsible for deciding whether larger platforms are in breach of the bloc’s governance structure for handling illegal speech, and, if so, for determining appropriate penalties or other measures to encourage them to reset their approach.

Asked whether it has any concerns with Musk owning Twitter — given his free speech “absolutist” agenda — the Commission declined to comment on Twitter’s ownership change, or any individual (and still ongoing) business transaction, but a spokesperson told us: “The Commission will keep monitoring developments as they take place to ensure that once DSA enters into force, Twitter, like all other online platforms concerned will follow the rules.”

What does Musk want to do with Twitter?

Musk hasn’t put a whole lot of meat on the bones of exactly what he plans to do with Twitter — beyond broad brush strokes of taking the company private — and claiming his leadership will unlock its “tremendous potential”.

What he has said so far has focused in a few areas — freedom of expression being his seeming chief concern.

Indeed, the first two words of his emoji-laden victory tweet on having his bid to buy Twitter accepted are literally “free speech”.

Though he also listed a few feature ideas, saying for example that he wants to open source Twitter’s algorithms “to increase trust”. He also made “defeating spam bots” part of his mission statement — which may or may not explain another reference in the tweet to “authenticating all humans” (which has privacy advocates understandably concerned).