By Alexandre Veronese (Professor of University of Brasília, CitDig key external member, UMinho) and Alessandra Silveira [Editor of this blog, Coordinator of Jean Monnet Centre of Excellence “Digital Citizenship and Technological Sustainability” (CitDig), UMinho]
The dilemmas of content moderation in the European Union and Latin America: a new chapter?
It was already known that Elon Musk’s direct participation in the presidential campaign that led to a second term for Donald Trump would have consequences for Big Tech regulation policies. However, one did not imagine that it would happen so quickly. The recent policy change by Meta – the parent company to which Facebook, Instagram and WhatsApp belong – paves the way for other technology companies to seek ways to tacitly or explicitly “globalise” a broader interpretation of the concept of freedom of expression, according to the model of the United States of America.
For Brazil – and other democracies in Latin America – that have had clashes with large digital platforms, the dilemma will increase. It is worth remembering what happened in Brazil. The social network X – former Twitter –, after its acquisition by Elon Musk, changed its content moderation policy. Thus, potentially offensive posts were released in certain countries. This process culminated in court orders from the Federal Supreme Court of Brazil to block posts and accounts. Invoking its terms of use of service, social network X refused to comply with such orders. That reaction caused the application to be blocked.[1] Subsequently, the social network X met the demands of that court – which acts as the Brazilian constitutional court – and the application was able to function again.[2]
This momentary block may lead one to believe that Brazil is aligned with authoritarian regimes. It is not the case. It was a block due to non-compliance with court orders that reflects a concept of freedom of expression that is similar to that existing in the European Union (EU) – and which necessarily has limits. In fact, with exceptions, Latin American countries look to the European Union as an example of the construction and application of Big Tech regulation policies. This ranges from issues related to copyright to those related to the limits of freedom of expression.
In the current situation, it is impossible to impose the standard of interpretation of the First Amendment of the Constitution of the United States of America to the rest of the world. It is very different from what was built over decades of constitutional changes in Latin American countries, as well as in the Member States of the EU. On this topic, it is worth remembering the meaning of the judicial doctrine on freedom of expression in the case of Brandenburg v. Ohio, 1969. In this specific case, the Klu Klux Klan (KKK) had broadcasted a public event on television in the State of Ohio. However, Ohio had a State Law that prohibited the broadcast of hate speech. Brandenburg was the local leader of the KKK. The Supreme Court of the United States ruled that the State Law was unconstitutional as it violated the First Amendment of the Constitution. This judicial doctrine is still in force today in the United States of America.[3] This doctrine differs greatly from the understanding of constitutionally permissible limits to freedom of expression existing in the EU and in several Latin American countries.
In the recent past, Meta adopted a model of self-regulation (or fact-checking) through an independent board. It was an attempt to reconcile different models and promote pluralism of moderation – and thus prevent content considered illegal in a certain place from having repercussions elsewhere via social networks. The mission of those independent experts was essentially to flag posts with disinformation that went viral. However, the task was insurmountable, as the independent board only dealt with particularly difficult cases and consensus was very complicated.
The option adopted by social network X – and now by Meta – is simpler, according to the speech of the latter’s CEO, Mark Zuckerberg. The model based on an independent board is now replaced by a system of notes left voluntarily by the user community itself – whose effectiveness, in a benevolent reading, is very doubtful. In any case, to date, the Oversight Board still exists – the question is if and when it will be dismantled.[4] Apparently, the fact-checking program will be phased out, starting with the United States of America.
As for the legal basis for the change, Meta uses Section 230 of the Communications Act (Title 47 of the United States Code) to exempt platforms from liability, while this attribution is transferred to users, through free checks. From a legal and technical point of view, the creation of the aforementioned Section 230 was a very relevant milestone in enabling an open, free and interoperable Internet. However, this situation has changed drastically.
From a legal perspective, legal and institutional frameworks are increasingly being built to control data flows, especially in the EU and in the latitudes influenced by it – which involves judicial decisions, financial sanctions, partial or total blocks. However, from a technical perspective, these legal and institutional measures are circumventable, as there are efficient ways to navigate and use applications that are beyond the control of legal systems.
It is possible to imagine three abstract scenarios to attack this problem.
The first scenario is feared by all democracies. It would be the fragmentation of the Internet into national networks. Thus, applications from one country would be prevented from circulating in other countries. This would impoverish access to quality information.
The second scenario is the “globalisation” of a broad interpretation of the concept of freedom of expression. The biggest risk of this option is the misuse of data flows to generate real damage to democracies and citizens of the most diverse countries. It is very unlikely that there will not be some reaction to this populist drift.
Finally, the third scenario is the adoption of intermediate regulation, which takes into account the cultural and legal pluralism of different countries as well as of the EU. For this ideal scenario to become a reality, there will be a need for great collaboration between democracies to avoid the fragmentation of the Internet. It seems unlikely that some countries will adapt in favour of intermediate paths. Thus, there will always be the risk of countries operating connected to the Internet, but with a huge number of blocks and filters.
The central point is that Big Tech appears to have chosen a path in which countries and the EU will have to bear the costs of building compatibility and interoperability scenarios. There won’t be few. It will be necessary to create legal norms, institutional supervision mechanisms, and find political consensus in democracies that are going through complex times. Furthermore, it is important to note that this issue is linked to other geopolitical themes of great complexity: free trade, sustainability, corporate social responsibility, international cooperation against organised crime, etc. For all these purposes, the role of EU law will be absolutely central, as it serves as inspiration for legal models in the most varied latitudes.
In the speech in which he announced the new measures, Mark Zuckerberg admitted an association between the retreat in the content moderation model and the political environment in the United States of America, suggesting that Trump’s election represents a cultural turning point towards returning to give priority to “speech”. He even stated that Meta will work with President Trump to stand up to governments around the world who are persecuting North American companies and pushing for more “censorship”. And he said it is time to return to the roots when it comes to freedom of expression. What roots? Those of the judicial doctrine on freedom of expression in the case of Brandenburg v. Ohio? No, thanks…
The European Commission is aware of this and has been taking measures to try to contain future problems, having intensified its investigation in order to determine whether Elon Musk’s social network breached European rules on content moderation.[5] Furthermore, the European Commission welcomed the incorporation of the revised EU code of conduct by 12 of the largest digital platforms in order to counter the spread of hate speech under the Digital Services Act[6] – which holds digital platforms responsible for the content their users are exposed to in proportion to the size of the platform in question.[7]
In early January 2025, the European Commission categorically rejected Mark Zuckerberg’s accusations of censorship – and reiterated that social networks operating in the EU’s digital space must comply with their legal obligations under Union law. Content moderation is a constitutive element of online freedom of expression. It does not subvert freedom of expression, on the contrary – it is what allows the strength of the best argument to survive.
[1] See Deutsche Welle, “Brazil: Supreme Court upholds blocking Elon Musk’s X”, 9 February 2024, https://www.dw.com/en/brazil-supreme-court-upholds-blocking-elon-musks-x/a-70115172.
[2] See Vittoria Elliott, “X Is Back in Brazil”, Wired, 9 October 2024, https://www.wired.com/story/x-is-back-in-brazil/.
[3] See Brandenburg v. Ohio, 395 U.S. 444 (1969), No. 492, https://supreme.justia.com/cases/federal/us/395/444/.
[4] See Oversight Board, “Improving how Meta treats people and communities around the world”, https://www.oversightboard.com/.
[5] See Lisa O’Carrol, “EU asks X for internal documents about algorithms as it steps up investigation”, The Guardian, 17 January 2025, https://www.theguardian.com/technology/2025/jan/17/eu-asks-x-for-internal-documents-about-algorithms-as-it-steps-up-investigation; See Amandine Hess, “Do Meta’s announcements run counter to the European regulation on digital services?”, Euronews, 10 January 2025, https://www.euronews.com/next/2025/01/10/do-metas-announcements-run-counter-to-the-european-regulation-on-digital-services.
[6] See European Commission, “The Code of conduct on countering illegal hate speech online +”, 20 January 2025, https://digital-strategy.ec.europa.eu/en/library/code-conduct-countering-illegal-hate-speech-online.
[7] See European Commission, “The impact of the Digital Services Act on digital platforms”, https://digital-strategy.ec.europa.eu/en/policies/dsa-impact-platforms.
Picture credits: Julio Lopez on pexels.com.
