The End of Freedom of Expression 2: Merchandising and Censorship "Hand in Hand"

The End of Freedom of Expression 2: Merchandising and Censorship "Hand in Hand"

As part of the Action Plan for Democracy [1], the President of the European Commission Ursula von der Leyen has announced a law on media freedom for September: "Because when we defend the freedom of our media, we are also defending our democracy" [2]. The aim is to "create a common framework for the promotion of the internal market in the media sector, in order to preserve media freedom and pluralism in this market". So much for the Brussels theory!

In practice, we can see how this "freedom" is being flouted, with the active support of the guardians of the internal market. The introduction of the Digital Markets Act (DMA) and the Digital Services Act (DAS) does not change this. With their paragraphs, the bureaucrats in Brussels think they can bring the big digital companies and platform operators to heel. But a glance at Article 12 of the Draft Regulation on a Single Market For Digital Services [3] shows otherwise: the groups are obliged to indicate in their general terms of use any restrictions on the information made available by users. Critics of the German press and media industry have made it clear that the general terms and conditions come first, and only then the fundamental right to freedom of expression and of the press! [4]

The new guardians of freedom of expression

The original downfall of this Article 12 goes back more than 25 years and has its origins, like all good things, in the US. Section 230 of the Communications Decency Act (1996) created immunity at the US federal level from any cause of action that would make Internet service providers liable for information from a third party user of the service. [5]

This founded - according to the German literary and media theorist Joseph Vogl in his remarkable essay "Capital and Resentment" - a kind of "Internet exceptionalism". This has also been taken up by the EU and the member states in relevant directives. [6]

"The free distribution of content of all kinds has become somewhat autonomous (...). He who publishes is not responsible, but he who is responsible for the content does not publish" [7]

In this context, particular attention should be paid to section c.2.A. of Article 230: it exempts platforms and network services from any liability for the information they disseminate. On the other hand, Article 230 gives them the right to remove content "in good faith", on their own initiative and according to their own criteria - even if it is constitutionally protected content. That is the punchline! Joseph Vogl states in this regard:

"But it is precisely the privilege of responsibility under the sign of freedom of expression that has allowed companies to decide themselves on the freedoms of speech. (...) Companies, which are not publicists from a legal point of view, supply the greater part of a so-called public with informational goods, produce specific audiences themselves and profit precisely from them." [8]

This is where the commercial comes in: the unconditional "transmission" of information, which is a classic public good, would not be a business! These network platforms and services therefore artificially make information scarce by selecting it - and thus generate huge revenues: Meta achieved a turnover of around 115 billion US dollars from advertising in 2021, while Twitter's figure was 4.51 billion US dollars. In the US, Instagram's advertising revenue in 2020 was around USD 17.4 billion. Despite a historic fall in share prices in May, Apple, Amazon, Microsoft, Alphabet and Meta remain the engines of the US economy with a combined market value of US$8 trillion.

At the same time, the number of users is growing: Pew Research [9] indicates that by 2021, 48% of the US adult population will be consuming messages at least occasionally via social media channels. In the EU, in the year 2020, an average of 57% of 16-74 year olds communicate or consume messages and information via social media. [10]

Who is censoring and on whose behalf?

In the media-political cacophony, freedom of information and expression and its restrictions are interpreted at will. From a strictly dogmatic point of view, a distinction must be made between whether interventions and limits are set by the sovereign action of the state or whether private groups set such limits as part of their corporate freedom. In other words: are the deletions of accounts or posts court-ordered or are they carried out "in good faith" by platforms and network services?

The situation becomes treacherous when the state does not censor as part of its sovereign action, but instead allies itself with private groups in a roundabout way and entrusts them with the process. Platforms and network services censor with the knowledge and will of the EU and its Member States. They do it because the "1996 Fall" gives them these unlimited rights. They do it because it is a business model. They do it because it allows their arm to reach even further into state structures.

In December 2021, the messaging service Twitter implemented its misleading information policy on COVID-19. [11] According to this guideline, Twitter reserves the right to delete tweets stating that COVID vaccines have not received full approval. However, we know that all vaccines currently in circulation have only received conditional approval. [12] Facebook also removes erroneous information, especially about vaccines, when health authorities conclude that the information is false and probably contributes directly to the threat of a refusal of vaccination. [13]

When criticising this form of censorship, one often hears that one is free to look for another forum on the Internet with one's own opinion. But there is a catch: Twitter, Facebook and other social platforms are quasi-monopolies, users whose opinion is rejected do not have an unlimited number of equivalent alternatives.

The states know this too, the Commission knows this. And they also know that they cannot cite a passage in the EU treaties that allows them to transfer and allow this form of private sector interference in fundamental rights to private groups! The Commission and the Member States know that they must use anti-trust legislation to prevent these market abuses!

Freedom of information is not a luxury

Communication in the sense of exchange of information is, together with cooperation, a fundamental law of life in society. If communication and information are hindered or disrupted, the consequences are significant.
If communication and freedom of information are impeded by the state, fundamental rights and freedoms, as well as democratic means (e.g. elections), can be enforced by the courts in a functioning state.
On the other hand, if communication and freedom of information are obstructed or disrupted by non-state actors (technostructure), it is the responsibility of states and the international community to put an end to it - by legal means and by coercion!
However, if a state or a community of states allies itself with non-state actors (technostructure) to hinder or disrupt communication and freedom of information, this can lead to war in relations between states - but to the end of the open society!

This analysis was first published in: Le Courrier des Stratèges on August 19th, 2022


[7] Vogl, Joseph: Kapital und Ressentiment. Eine kurze Theorie der Gegenwart, Beck 2021, page 123.
[8] Vogl, Joseph: Kapital und Ressentiment. Eine kurze Theorie der Gegenwart, Beck 2021, page 125 and 141