On Friday, a conservative group named Canada Proud tweeted at Elon Musk, saying, “Now that you own Twitter, will you help fight back against [Prime Minister Justin] Trudeau’s online censorship bill C-11?” Musk, who appears more eager to reply to random tweets than to study the laws that will govern his new acquisition, tweeted back, “First I’ve heard.” Oh.
In the coming weeks, Musk is in for some surprising meetings and phone calls, it seems (if anyone’s left in the Twitter legal department to set up those meetings or calls). Canada’s C-11 bill, also known as the Online Streaming Act, would greatly increase governmental control over online content, and it is part of a wave of new internet-speech laws now being debated or implemented in countries around the world.
Nobody, not even Musk, is above the law. Indeed, Musk’s ownership of Twitter is proof positive that a man can build spaceships that defy gravity, but the law will still bring him down to earth. As much as he tried to wriggle out of the purchase, getting battered and bruised in the Delaware Court of Chancery is what seems to have brought Musk to heel and led him to close the deal that he announced in April.
Since then, Musk has made numerous statements about his plans to change how the platform moderates content—that is, how it treats the material that its users post on its site. Most of these plans seem to involve taking a lot less content down. The mercurial Musk might not actually follow through on these thought bubbles; making good on his vow to “defeat the spam bots,” for example, would require Twitter to shut down more accounts, not fewer. But the overall tenor of his comments reflects a certain nostalgia for the more libertarian early days of social media. Musk seems to believe that “the tweets must flow,” as one of Twitter’s co-founders famously declared in 2011.
But the halcyon days of social-media platforms’ youth are over, and the regulatory landscape that these platforms grew up in is gone forever. In fact, contrary to common understanding, social media has never been unregulated. As the Georgetown professor Anupam Chander has argued, “Law made Silicon Valley,” by intentionally giving platforms a wide berth in how they treated content on their website. The centerpiece of this approach is the now-famous Section 230, which immunizes platforms from liability for most of their content-moderation choices. No other country has been as hands-off as the United States, but platforms have enjoyed substantial regulatory leeway in much of the rest of the world too. Now, amid a widespread belief that the tech giants are changing society for the worse, many jurisdictions are looking for ways to rein them in. And in many places, they are succeeding.
In the U.S., members of Congress have introduced a pile of bills to amend Section 230, but even if none becomes law, the legal framework in which internet platforms operate appears to be on shaky ground. In October, the Supreme Court agreed to hear two cases that may dramatically narrow Section 230’s scope and expose platforms to much more regulatory risk. In the first, Gonzalez v. Google, the relatives of an American student killed in a 2015 terrorist attack in Paris are suing YouTube’s parent company over Islamic State propaganda on the site. The Court will decide whether social-media platforms become liable for users’ content if they algorithmically recommend it to other users. If the justices say yes, then Twitter could suddenly be on the hook for recommending defamatory speech or harassment or speech that supports terrorism. The impact of such a ruling on Musk’s platform could be enormous, because basically everything in most users’ Twitter feed is “recommended” in one form or another.
In the second case, Twitter v. Taamneh, the Court will decide whether platforms can be found to have aided and abetted terrorism if terrorist propaganda appears on their sites, notwithstanding the fact that platforms already remove a lot of such material. If both of these cases come out against the platforms, Musk’s apparent disdain for taking content down might quickly evaporate.
Another pair of cases likely to end up on the Court’s docket arise from challenges to Texas and Florida laws that prevent platforms from taking some posts down even when they violate their house rules. Here, a conservative Court might be tempted to uphold governmental restrictions on private companies’ ability to police speech. (Don’t ask me how to make all these cases fit together—the platform-regulation expert Daphne Keller has likened them to “three-dimensional wooden puzzles where you try and try to jam the pieces together into a coherent shape and they just won’t jam together.”) The laws also require platforms to publicly report information about their practices and meet various other procedural requirements. If the Court sides with Texas and Florida, it could embolden states generally to pass more regulation—as many seem eager to do. In another sign of the times, a Washington state judge just fined Meta—the corporate parent of Facebook and Instagram—nearly $25 million last week after finding that the company had breached a political-ad transparency law 822 times, opening a door that many other states might also walk through.
More regulation is coming across the Atlantic too. After Musk tweeted “the bird is freed” on Thursday, European Union Commissioner for Internal Market Thierry Breton responded with a friendly reminder: “👋 @elonmusk In Europe, the bird will fly by our 🇪🇺 rules. #DSA.” The hashtag referred to the EU’s new Digital Services Act, which was passed this year and will take effect over the next few years. The complicated and sweeping law imposes a wide variety of risk-assessment, auditing, transparency, and procedural obligations on large platforms and exposes them to massive fines if they don’t comply. Unlike with the Canadian bill, Musk at least has heard of this one. In May, a few weeks after Musk announced he was buying Twitter with much bravado, Breton released something that vaguely resembled a hostage video, shot just after he had explained the DSA in a discussion with Musk. In it, the two men shook hands, and an uncharacteristically obliging Musk told Breton, “I agree with everything you said, really.”
Meanwhile, India is also cracking its knuckles. The world’s second-most-populous country has been especially active in passing new laws to give the government greater control over online speech. It has pressured Twitter to suppress criticism of Prime Minister Narendra Modi’s government and keep its hands off content supporting the BJP, India’s governing party. Musk’s purchase will not make the government lose its appetite for regulation. Rajeev Chandrasekhar, India’s minister of state for electronics and information technology, told Reuters on Friday that—unsurprisingly—“our rules and laws for intermediaries remain the same regardless of who owns the platforms. So the expectation of compliance with Indian laws and rules remains.” Until recently, Twitter stood apart in challenging the government’s demands, and it was rewarded with Indian police officers paying Twitter’s offices in New Delhi a visit. Let’s see how well Musk’s commitment to free-speech absolutism fares in such a climate.
These examples are just the start. A host of other countries—Turkey, Brazil, Britain, Germany, and Australia, to name only a few—are considering imposing new obligations on social-media platforms. And being a global company means global exposure. For days, the billionaire entrepreneur has been signaling that he views Twitter as his playground—including by amplifying misinformation about the attack on House Speaker Nancy Pelosi’s husband; assigning engineers from his car company, Tesla, to review Twitter’s software code; and floating the idea of charging verified users $20 a month to keep their blue checks. But lawmakers around the world don’t have an appetite for games. As the EU’s competition commissioner, Margrethe Vestager, said yesterday, “We have the penalties. We have the fines. We have all the assessments and all the decisions that will come to haunt you.”
Musk has a lot less freedom than he realizes. He should brace himself for many more regulatory slaps in the face.
