It wasn’t in the top ranks, with Snapchat or LinkedIn. Not at the last one either, in the company of the insolent X, the restless TikTok, or the dunce Telegram. In the eyes of the European Union, Meta was, in terms of moderation, a student who was not always willing, but who listened. Since 2016 and through scandals (Cambridge Analytica, Facebook Files, etc.), its director and founder, Mark Zuckerberg, has worked rather positively on the content published on its platforms. A priority for the EU, which conditions access to its market of 450 million people on strict user protection rules. Adopted in 2022, this democratic safeguard resulted in the regulation on digital services, known as DSA.
On January 7, there was a twist: Mark Zuckerberg loudly walked to the back of the class, balls of paper in hand. The moderation demanded by the European Union? Censorship, contrary to “freedom of expression”, he tackled in a video. Fact-checkers, these partners within the media, responsible for combating disinformation? Returned and replaced by “community notes” in the United States, but probably soon all over the world. This about-face was the most feared by the EU: Meta has the most powerful social network and messaging group in the world, with around 3.5 billion users. And its motivation seems less ideological than cynical: for the creator of Facebook, it is a question of aligning itself with the will of America’s new strong duo. “Trusk”, the alliance between Republican President Donald Trump and Elon Musk, accused of interference in the Old Continent via his social network X (formerly Twitter).
This situation poses a vital challenge to the 27 Member States: how to enforce its young regulations in the face of a Silicon Valley that is already very economically powerful and which now rallies massively behind “Trusk”, ready to trigger a trade war against anyone who stands in its way ? The European Commission, the exclusive decision-maker on the DSA with regard to very large platforms – those bringing together more than 45 million users on the continent – initially remained silent. Worse, information has circulated about the pausing of its ongoing investigations concerning Big Tech, in The World and the Financial Times. No less than six today, affecting Meta, X, or even TikTok, on the basis of the DSA.
Europe taken by surprise
Not helped by the hospitalization of its president, Ursula von der Leyen, the Commission initially denied this. From lip service. The cases against Big Tech are in fact mired in “technical” and not political stages. Including the most advanced, that on compliance. The investigations against Meta have not reached this level. Finally, in the absence of concrete implementation of Zuckerberg’s latest threats in Europe, a new investigation cannot, a priori, be opened on this ground.
So, failing to resolve them or being able to open them, Brussels decided to extend an ongoing procedure. Friday January 17 the Commission announced expanding its investigation… on While requiring her, from the same day, to keep all her documentation on this subject until December 31 – in case X had the bad idea of duping her. A clever procedure, planned in his texts, and which would help to resolve an enigma: is X being manipulated by its owner to spread his own vision of the world?
Be careful, however, of false hopes. This very technical investigation will surely be long, like the previous ones. “The application of the law is a never-ending battle and we must equip ourselves with the teams and skills to be able to enforce it,” outlined the former European Commissioner for the Internal Market, Thierry Breton, to L’Express ago a few months. That hasn’t changed. Finally, regarding the DSA, good collaboration between companies is also necessary. Contrary to popular belief, the EU does not “censor” content at the source nor does it determine what is illegal or not. “The DSA does not even mention the question of fact-checking by the media, it does not go into this type of detail”, indicates for example Julien Guinot-Deléry, lawyer specializing in new technologies within the firm Gide Loyrette Nouel, about Mark Zuckerberg’s policy change. Clearly, the simple abandonment of this practice does not make Meta guilty de facto.
Heavy penalties
“The regulation places obligations on very large platforms to identify systemic risks and implement measures to remedy them,” summarizes Charles Bouffier, lawyer at the Racine law firm. A sort of self-assessment, on deliberately broad “risks”, such as “negative effects on elections and public debate”. This is where Meta’s abandonment of fact-checking could, at some point, pay off. Or the possible voluntary modification of the X algorithm by Elon Musk. Another risk is “impediment to freedom of expression”. Because yes, American platforms are not always as free speech that they claim. Meta has been pursued by the EU since last spring for having reduced the visibility of political content, without any transparency. The opposite of what he promotes today.
Regardless, this process takes time. The Commission must also prepare for the next move. Companies targeted under the DSA can appeal to the Court of Justice of the European Union. Which seems inevitable: the tech giants have systematically appealed their sanctions within the framework of other regulations, such as that on personal data (GDPR). The EU has already experienced setbacks, as recently as September, when a fine of 1.49 billion euros issued by the European Commission to Google in 2019 for an abuse of a dominant position was overturned by the courts. The files must therefore be “concrete”. Even though case law is lacking, whether it is the DSA or the DMA.
However, some people oppose this slowness in the case of “lite” TikTok. At the start of 2024, this tablet from the Chinese giant ByteDance was quickly taken out of the game, after alerts linked to the risks of addiction among young users. A double standard with American platforms? TikTok had removed the disputed application itself. Which remains a good example of the “deterrent” effect of the DSA, shortly after its entry into force. But not yet of its “punitive” nature.
However, sanctions do exist. And they promise to be colossal, compared to those issued in the name of the GDPR. Up to 6% of global annual turnover for the offender, in the DSA. Concerning Considering X’s global turnover, the amount collected would only amount to 150 million euros. A parking ticket, for the richest man in the world… The ban on operating in Europe is also provided for by law, as several political leaders have insisted in recent weeks, like the Minister of Affairs French foreigners, Jean-Noël Barrot. The “queen” of sanctions.
Political courage
But this is where the law gives way to politics. And to the courage: that of the college of European commissioners, the sole decision-maker on the scope and scale of such punishment. A temerity that the tech giants, Meta and The latter was publicly moved in a letter addressed to the Commission on Friday January 10. She denounced a “dangerous precedent” behind this procrastination against American tech. According to the MP, the end of the investigations “would risk being perceived as favoritism towards certain companies or certain countries, thus fueling the discourse according to which European laws are intrinsically anti-Gafam.” A real blank check.
Especially since the EU already fears a broader alliance, which would attack not only moderation and the DSA, as well as the DMA or the IA Act, other babies of the Commission on free competition in the digital market and artificial intelligence. Here, Apple, Amazon – founded by Jeff Bezos, who recently got closer to Donald Trump – or even Microsoft could be offensive. Because of the fear inspired by the new American president, of course. But also because the renewal of the college of commissioners seems more favorable to the behemoths of Silicon Valley.
Thierry Breton and Margareth Vestager left their positions at the end of the year. The Frenchman, at the Internal Market, stood out for his direct opposition to the new moderation policy of X, under Elon Musk. It was he who opened the first in-depth investigation against the social network, in December 2023, following the terrorist attacks in Israel and the deleterious online climate. The Dane, at Competition, was considered the worst nightmare of Google and Apple. Two companies that she managed to have heavily condemned, in September, shortly before the end of her mandate.
Thierry Breton’s replacement, the Finnish Henna Virkkunen, seems more timid for the moment. “Social networks play an important role in the daily lives of citizens, but they also have considerable social and economic importance and influence. In Europe, we want to create a safe and fair digital environment,” he said. she lukewarmly strode, following Mark Zuckerberg’s change of heart. Expanding the investigation against X is a lesser evil, therefore, and can above all open a dialogue: appeasement? After the election of Donald Trump, Brussels’ special envoy to Silicon Valley, Gerard de Graaf, also extolled the virtues of this approach. “We have experienced an intense period of law development. We will now be more selective,” he said. A way to reassure your interlocutors, in the epicenter of American tech. To propose a form of truce. However, it seems a little late: war has been declared.
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