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Contrary to the current European Union reform debate, it is possible to have the enlargement process and deeper EU integration run parallel, former European Commission president Jos Manuel Barroso told Euractiv.

A very important lesson learned from then is that its possible to enlarge and deepen [the EU] at the same time, Barroso said. There were always those who said, more enlargement means less deepening this is completely false.

Under Barrosos two Commissions, the EU first increased from 15 to 25 members when ten countriesCyprus, Czechia, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia, and Sloveniajoined in 2004. Bulgaria and Romania followed in 2008, and Croatia in 2013.

It was a historic, unprecedented success of the EU, showing also the transformative capacity of the bloc, Barroso said, adding Europe should not lose the perspective of what happened back then.

Over the years, Barroso said the EU has made more progress in deeper integration, especially with debt mutualisation under the NextGenerationEU fund and a higher level of convergence between 27 member states in UN votes than at 12 members.

When asked about lessons learned from two decades of enlargement, Barroso said they would be to avoid grey zones of instability in the EUs neighbourhood and not to lose the standards of the EU.

Despite issues with the rule of law in some of the newer EU member states, Barroso said, They are now much better off than before joining the European Union, namely when they were under Communist rule.

I thought it was a huge mistake when, after my second Commission term in 2014, it was said there would be no more enlargement in the next five years, Barroso said.

It was creating disappointment, frustration and even resentment and it was ignoring the sensitivity of those countries and those people, he said.

Asked about European Council President Charles Michels 2030 target, Barroso does not favour definitive dates as it could create disappointment.

But its especially important now, namely because of Ukraine, how to deal with time because the reality is that its not realistic to have a country in the EU that is in a state of war, Barroso said.

Barroso echoed calls from the current European Commission and some EU member states for the gradual integration of candidate countries by letting them participate in some of the blocs meetings, programmes and institutional structures.

Precisely because its going to be difficult and probably long, we need to start earlier [to integrate them] as weve done before, he added.

In Brussels, the question of when the bloc is ready for new members goes hand in hand with how it will function when it expands from 27 to potentially over 30 members.

Asked whether the blocs treaties can handle 36 members or if it would require another treaty change, Barroso said it would be a huge mistake if now Europeans would start a fundamental revision of the [EU] institutions because of the enlargement.

Im not saying this to defend the Lisbon Treaty, which I negotiated, but because it requires unanimity to change a treaty, and if we start introducing other issues [like enlargement] in the process, the pretexts for opposing it are going to increase, Barroso said.

There will be people who want to block enlargement, so they will use institutional arguments, and there will be people who want to block institutional reform, so they will use enlargementwe should not mix the problems, he added.

Instead, the bloc should avoid too ambitious reforms and only make those strictly necessary for enlargement.

I was president of a Commission with 28 members and all studies, all opinions, showed that our Commission was taking decisions more effectively and quicker than the previous smaller Commissions, Barroso said.

Asked about the current debate on the potential cost of enlargement as an argument against it, Barroso said, The alternative will certainly cost more than to invest in enlargement.

Are we ready to pay for the instability of tomorrow, encouraged by the possible success of Russia in Ukraine? Does it cost less?

The issue of costs has to be seen strategically and not just in the short-term accounting manner, Barroso said, adding: Our conclusion [in 2004] was the advantages, not only political but also in economic terms, were higher than the costs.

He also called for reform of the EUs system of own resources. Instead of the current net payers and receivers system, the EU could have some own resources linked, for instance, to the VAT or member states paying according to benefits [they have] from the internal market.

According to him, the EU should really invest in the enlargement from all points of view.

Sometimes its not just about money its about attention, its about being present [in those countries], and its about giving advice and that requires something bigger and larger than what we have seen so far, Barroso said.

It cannot only be done by the DG and the respective Commissioner, with all due respect. It needs to involve the [European] societies as a whole.

In a reference to the current pro-EU protest in Georgia, where demonstrators rally against a foreign influence bill which could jeopardise the countrys path into the bloc, Barroso said:

We see people waving EU flags, [like they have done on the Maidan when I was in Ukraine]. What do we want more? How many people in current EU member states would do this at the moment?

This is why we need to deal with these aspirations in a way that is not just political or administrative and technical, he added.

Originally posted here:
Possible to enlarge and deepen EU at the same time, Barroso says - EURACTIV

The European Union is getting ready to launch a new investigation into Meta over its handling of election-related content, according to a new report in The Guardian. Details of the investigation could be announced later this week, but European officials are reportedly concerned about deceptive advertising and political content.

According to the Financial Times, the EU has also raised concerns about Russias efforts to undermine upcoming European elections and other foreign interference campaigns. The EU is set to hold parliamentary elections in June. If the company is found to have run afoul of the Europes Digital Services Act, it could be hit with large fines.

EU officials are also particularly concerned about Metas plan to shut down CrowdTangle in August. The tool has been widely used by researchers and fact checkers for years to study how content spreads across Facebook and Instagram. Dozens of researchers and fact-checking groups signed an open letter to the company last month saying that shutting down the tool ahead of dozens of global elections would be a direct threat to election integrity efforts around the world.

We have a well-established process for identifying and mitigating risks on our platforms, a Meta spokesperson told Engadget in a statement. We look forward to continuing our cooperation with the European Commission and providing them with further details of this work.

Elsewhere, the EU is also investigating Meta over its ad-free subscription plan available to European users. That investigation, which could last up to a year, will look into whether the social media company has violated Europes Digital Markets Act, by not offering users a real alternative to opt out of data collection.

Originally posted here:
The European Union will reportedly open a new investigation into Meta over election policies - Engadget

May 2, 2024

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The Directive extends the list of criminal offenses to the environment on EU level. EU Member States have two years to transpose the directive into national law after the its entry into force on May 20, 2024.

On April 30, 2024, the European Union (the EU) published directive 2024/1203 on the protection of the environment through criminal law (the Directive) in its official journal.[1] The Directive was adopted by the European Parliament (the Parliament) on February27, 2024[2] and by the European Council (the Council) on March26, 2024[3].

The goal of the Directive is to combat environmental offenses more effectively. To this end, it introduces (i) new environment-related criminal offenses, (ii) detailed requirements regarding sanctioning levels for both natural and legal persons and (iii) a variety of measures that Member States must take in order to either prevent or effectively prosecute offenses.

The Directive will come into force on May20, 2024[4], after which the Member States (with the exception of Ireland and Denmark[5]) will have 24 months to transpose it into national law.[6] Importantly, the Directive by its nature only establishes minimum requirements. Member States may choose to go beyond those minimum requirements and adopt stricter criminal laws when implementing the Directive.

A. Background

In its founding treaties, the EU has committed itself to ensuring a high level of protection of the environment.[7] To this end, in 2008, the EU adopted the Directive on the protection of the environment through criminal law, obligating Member States to criminalize certain environmentally harmful activities. A subsequent evaluation of the effectiveness of the Directive identified considerable enforcement gaps in all Member States. Further, it concluded that the number of cross-border investigations and convictions in the EU for environmental crime had not grown substantially as expected.[8] Since environmental crime is growing at annual rates of 5% to 7% globally[9], creating lasting damage for habitats, species, peoples health, and the revenues of governments and businesses, the European Commission concluded the current directive to be insufficient and proposed a new directive.

The Directive should be seen in the context of other recent EU regulations that have already been passed or are still in the legislative process, which aim at protecting the environment in the context of the EUs transition to a climate-neutral and green economy (Green Deal[10]). For example, the Corporate Sustainability Reporting Directive (CSRD), which has come into force on January5, 2023, requires certain companies to report on impacts as well as risk and opportunities related to sustainability matters.[11] On April24, 2024, after lengthy negotiations and several postponements, the Corporate Sustainability Due Diligence Directive (CSDDD) which sets out due diligence obligations for companies regarding actual and potential adverse impacts on the environment and human rights in their value chains was finally passed by the Parliament.[12]

B. Environmental Crime Defined

The Directive provides for 20 basic criminal offenses addressing various ways of conduct.[13] Conduct in this respect relates, for example, to

Unlawful Conduct Conduct in Breach of the Unions Policy on the Environment

The offenses defined by the Directive require unlawful conduct, i.e. either (1) a breach of Union law contributing to the pursuit of at least one of the objectives of the Unions policy on the environment or (2) a law, regulation or administrative provision of a Member State or a decision taken by a competent authority of a Member State that gives effect to such Union law.[21] Pursuant to Article191 (1) of the Treaty on the Functioning of the European Union (TFEU), Union policy on the environment shall contribute to pursuit of the following objectives:

Importantly, the Directive makes clear that conduct shall be deemed unlawful even when it is carried out under an authorization if such authorization was obtained fraudulently or by corruption, extortion or coercion, or is in manifest breach of relevant substantive requirements.[22] The recitals suggest that in manifest breach of relevant substantive legal requirements should be interpreted as referring to an obvious and substantial breach of relevant substantive legal requirements, and is not intended to include breaches of procedural requirements or minor elements of the authorization.[23]

Common constituent element

The majority of the offenses described by the Directive require that the conduct causes or is likely to cause the death of, or serious injury to, any person or substantial damage to the quality of air, soil or water, or substantial damage to an ecosystem, animals or plants[24]. While the Directive provides for elements that should be taken into account when assessing whether the damage to the quality of air, soil or water, or to an ecosystem or to animals or plants is substantial[25], the recitals stipulate that this qualitative threshold as well as the term ecosystem should be generally understood in a broad sense suggesting a possibly wide scope of application.[26]

Qualified Offenses

The Directive introduces qualified offenses with more severe penalties consisting of (a) the destruction of, or widespread and systematic damage, which is either irreversible or long-lasting to, an ecosystem of considerable size or environmental value or a habitat within a protected site, or (b) widespread and substantial damage which is either irreversible or long lasting to the quality of air, soil, or water.[27] In its recitals, the EU describes such offenses as comparable to Ecocide.[28] The term ecocide was originally coined in the 1970s during the Vietnam war and was eventually recognized as a war crime under the Rome Statute[29].[30] The language of the Directive further resembles the definition of crimes against humanity.[31]

Intentional or Serious Negligence Required

As a general rule, the offenses set out by the Directive require that the conduct is intentional.[32] For 18 modalities, Member States must ensure that the respective conduct constitutes a criminal offense where that conduct is carried out with at least serious negligence.[33]

Complicity and Inchoate Offending

Pursuant to the Directive, Member States must ensure that inciting, and aiding and abetting the commission of an intentionally committed offense are punishable.[34] For 16 modalities of conduct, the Directive instructs that attempts be a crime.[35]

Penalties

Criminal penalties for individuals must be effective, proportionate and dissuasive.[36] The Directive stipulates that these must include maximum terms of imprisonment of at least ten, eight, five, or three years depending on the specific offense.[37] Accessory criminal or non-criminal penalties or measures may include the (a) obligation to restore the environment or pay compensation for the damage to the environment; (b) fines; (c) exclusion from access to public funding; (d) disqualification from holding, within a legal person, a leading position of the same type used for committing the offense; (e) withdrawal of permits and authorizations; (f) temporary bans on running for public office; (g) where there is a public interest, following a case-by-case assessment, publication of all or part of the judicial decision that relates to the criminal offense committed and the sanctions or measures imposed.[38]

C. Corporate Liability

The Directive not only addresses individual misconduct, but also criminal offending on behalf of legal persons. In this respect, Member States must ensure that legal persons can be held liable for offenses conducted by any person who has a leading position within the legal person concerned, either based on a power of representation, an authority to take decisions, or an authority to exercise control within the legal person.[39] Liability must also include the lack of supervision or control by a person who has a leading position when it has made possible the commission of an offense for the benefit of the legal person by a person under its authority.[40]

In terms of sanctions, Member States must ensure that liable legal person can be punished by effective, proportionate and dissuasive criminal or non-criminal[41] penalties or measures.[42] This is supposed to include fines which shall be proportionate to the seriousness of the conduct and to the individual, financial and other circumstances of the legal person concerned.[43] Member States are to ensure that the maximum level of fines is, depending on the specific type of offending, not less than

Beyond that, the Directive obliges Member States to take the necessary measures to ensure that legal persons held liable for ecocide are punishable by more severe penalties or measures.[47]

Further measures or sanctions with respect to legal persons may include (a) the obligation to restore the environment or pay compensation for the damage to the environment; (b) exclusion from entitlement to public benefits or aid; (c) exclusion from access to public funding, including tender procedures, grants, concessions and licenses; (d) temporary or permanent disqualification from the practice of business activities; (e) withdrawal of permits and authorizations to pursue activities that resulted in the relevant criminal offense; (f) placing under judicial supervision; (g) judicial winding-up; (h) closure of establishments used for committing the offense; (i) an obligation to establish due diligence schemes for enhancing compliance with environmental standards; and (j) where there is a public interest, publication of all or part of the judicial decision relating to the criminal offense committed and the penalties or measures imposed, without prejudice to rules on privacy and the protection of personal data.[48]

D. Jurisdiction

Member States have jurisdiction over an offense, (a) if the offense was committed either in part or in whole within its territory, (b) on board a ship or an aircraft registered in the Member State concerned or flying its flag, (c) the damage which is one of the constituent elements of the offense occurred on its territory or (d) the offender is one of its nationals.[49]

In particular the establishment of jurisdiction when the damage that is one of the constituent elements of the offense occurred on the territory of a EU Member State, may lead to a wide applicability of the Directive and may even lead to multiple prosecution and in return to a further enhancement of the cooperation between enforcement authorities in different states.[50] By way of example, if a national of a non-EU Member State disposed waste illegally in a river that runs through both a non-EU Member State and one or more EU Member States and the waste killed a substantial part of the fish population, the Member States jurisdiction could be triggered.

In addition, a Member State may exercise jurisdiction if (a) the offender is a habitual resident in its territory, (b) the offense is committed for the benefit of a legal person established in its territory, (c) the offense is committed against one of its nationals or its habitual residents or (d) the offense has created a severe risk for the environment on its territory.[51]

Where an offense falls in the jurisdiction of more than one Member State, those Member States are required to cooperate to determine which Member State shall conduct the criminal proceedings.[52]

E. Preventive and Other Measures

The Directive stipulates a variety of measures that Member States must take in order to either prevent or effectively prosecute offenses.

[1] See EU Official Journal April 30, 2024 and the legislative text.

[2] See Press Release of the Parliament (February 27, 2024).

[3] See Press Release of the Council (March 26, 2024).

[4] Pursuant to Article 29 the Directive will come into force on the twentieth day following that of its publication in the Official Journal of the European Union.

[5] Recitals 69, 70.

[6] Article 28 of the Directive.

[7] Art. 3 (3) of the Treaty on European Union and Art. 191 TFEU.

[8] See the European Commissions Proposal for the Directive (COM (2021) 851 final), p. 1.

[9] See https://ec.europa.eu/commission/presscorner/detail/en/ip_23_5817.

[10] See Communication from the Commission on the European Green Deal, COM/2019/640 final.

[11] See European Unions Corporate Sustainability Reporting Directive What Non-EU Companies with Operations in the EU Need to Know and European Corporate Sustainability Reporting Directive (CSRD): Key Takeaways from Adoption of the European Sustainability Reporting Standards.

[12] See the Letter of the Chair of the JURI Committee of the European Parliament of March 15, 2024..

[13] Article 3(2) of the Directive.

[14] Recital 15.

[15] Article 3(2)(a) of the Directive.

[16] Article 3(2)(b) of the Directive.

[17] Article 3(2)(c) of the Directive.

[18] Article 3(2)(f) of the Directive.

[19] Regulation (EU) 2023/1115.

[20] Article 3(2)(p) of the Directive.

[21] Article 3(1) of the Directive.

[22] Article 3(1) of the Directive.

[23] Recital 10.

[24] See e.g. Article 3(2)(a) of the Directive.

[25] Article 3(6) of the Directive.

[26] Recital 13.

[27] Article 3(3) of the Directive.

[28] Recital 21.

[29] Rome Statute, article 8(2)(b)(iv);

[30] European Law Institute Ecocide.

[31] Rome Statute, article 7(1).

[32] Article 3(2) of the Directive.

[33] Article 3(4) of the Directive.

[34] Article 4(1) of the Directive.

[35] Article 4(2) of the Directive.

[36] Article 5(1) of the Directive.

[37] Article 5(2) of the Directive.

[38] Article 5(3) of the Directive.

[39] Article 6(1) of the Directive.

[40] Article 6(2) of the Directive.

[41] Depending on whether the Member States national law provides for the criminal liability of legal persons; see recital 33.

[42] Article 7(1) of the Directive.

[43] Article 7(2), (3) of the Directive.

[44] Either in the business year preceding that in which the offense was committed, or in the business year preceding that of the decision to impose the fine.

[45] Article 7(3)(a) of the Directive.

[46] Article 7(3)(b) of the Directive.

[47] Article 7(4) of the Directive.

[48] Article 7(2) of the Directive.

[49] Article 12(1) of the Directive.

[50] Regarding the application of the double jeopardy-/ne bis in idem-principle between multiple jurisdictions, see also Extraterritorial Impact of New UK Corporate Criminal Liability Laws.

[51] Article 12(2) of the Directive.

[52] Article 12(2) of the Directive.

[53] Article 10 of the Directive.

[54] Article 13 of the Directive.

[55] Article 16 of the Directive.

[56] Article 17 of the Directive.

[57] Article 18 of the Directive.

[58] Articles 19, 20 of the Directive.

[59] The intervals should be no longer than 5 years.

[60] Article 21 of the Directive.

[61] Article 22 of the Directive.

The following Gibson Dunn lawyers prepared this client alert: Benno Schwarz, Katharina Humphrey, Andreas Drr, and Julian Reichert.

Gibson Dunns lawyers are available to assist in addressing any questions you may have regarding these developments. If you wish to discuss any of the matters set out above, please contact the Gibson Dunn lawyer with whom you usually work, any member of Gibson Dunns White Collar Defense and Investigations practice group, or the following authors in Munich.

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EU Enhances Protection of the Environment Through Criminal Law - Gibson Dunn

This article was originally published inFrench

Will voters really have the EU itself in mind when they cast their ballot at the European elections in June?

The countdown to this year's EU parliament elections is well underway, but in many countries, the battle for votes seems to be being fought along national, not continental, lines.

The dynamic is especially strong in France, where the EU elections are being framed by some parties as a forerunner to the 2027 presidential race or"first and foremost mid-term elections", in the words of Jordan Bardella, head of list for the far-right Rassemblement National party, who is calling to "sanction Macron's Europe".

"If I'm in the lead, I'll obviously ask for the National Assembly to be dissolved that very evening," Bardella said in an interview with French broadcaster RTL. (Under the French Constitution, only the President of the Republic can take such a decision.)

"The attempt and temptation (...) to use the European elections as 'mid-term elections', as they say in the United States, is strong,"says Pascal Perrineau, professor emeritus at Sciences Po Paris and author of A Taste for Politics.

"People use them to vent their anger against those in power. Of course, the European far right plays this game a lot when it's not in power."

In France, this is the only major election before the next presidential election in 2027," points out ric Maurice, political analyst at the European Policy Centre. "It is a national list election, so there is a strong temptation to nationalise the ballot."

And based on studies of EU politics going back decades, this "nationalisation" of bloc-wide elections is hardly a new phenomenon.

A year after the first European elections in 1979, researchers Karlheinz Reif and Hermann Schmitt described the ballot as a "second-order national election".

Perceived as being of little importance, the elections were being used by political forces to gauge their popularity at national level, especially where the elections fell in the middle of a president or government's term.

Researchers also described the European elections as "national" because they are organised at national level, according to national rules, and pit national candidates against national candidates on national issues. The voting method, voting day and the legal age for voting or standing also differ between member states.

"For the moment, there are only slight trends towards the 'Europeanisation' of voting trends,"says Perrineau. "It's not massively obvious. They were somewhat visible during the last European elections in 2019, when there was a surge in voter turnout. We had the impression that more Europeans were interested in the European elections and in the power of the European Parliament."

Recent crises involving the European Union, such as the Covid-19 pandemic and the knock-on effects from Russia's large-scale invasion of Ukraine, have put European action at the forefront of voters' minds.

But will this be enough to bring European issues front and centre come 9 June? According to ric Maurice, the work of the European institutions still remains too little-known to the general public and many electorates' attention is focused on elections of their own.

Around ten national elections are being organised across the European Union in 2024. Several have already taken place, but in Belgium, federal and regional elections will be held on the same day as the European elections, on 9 June.

Presidential elections are due in Lithuania and Romania, while voters in Austria are expected to be called to the polls for legislative elections.

The European elections could also be an opportunity for parties in power or in opposition to gauge their popularity ahead of future elections, whether to see if they can cling on at their next national polls or to try and identify their best way back.

Ultimately, says Pascal, "Voters are more likely to vote for national, economic and social reasons at the moment the rise in energy costs, the problems of inflation than for European issues, be they European institutions, European policies or even the war in Ukraine."

In France, national issues take precedence over European issues for half of those polled, according to an Ipsos survey conducted for Le Monde, Cevipof, the Jean Jaurs Foundation and the Institut Montaigne.

53% of the French sample said that they would take account "above all of the parties' proposals on national issues" to determine their choice of vote, while only 47% named European issues as their top concern.

What's more, 52% of those polled said that they would "vote first and foremost to show their support for or opposition to the President of the Republic or his government".

According to the study, the Europeanisation of concerns is socially divided.

"In certain circles, I'm thinking in particular of white-collar workers, executives and working people under 50, there is an awareness that Europe is more than something far away in Brussels or Strasbourg," explains Perrineau, who contributed to the study.

"On the other hand, in certain circles that are further removed from Europe - I'm thinking of blue-collar workers, white-collar employees, the unemployed (...) national concerns often take precedence over European concerns," he explains.

And at the end of the day, European issues such as immigration, the Common Agricultural Policy and support for Ukraine also feature in national elections proving thatnational and European issues are so intertwined that it is sometimes difficult to disentangle them.

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European elections: are national issues overshadowing European ones? - Euronews

With the announcement of its latest investigation of a global social media company this time, Meta the European Union is providing an illuminating lesson on how to regulate tech behemoths without threatening free speech. One would like to think that U.S. politicians and policymakers are taking notes. Unfortunately, thats probably a fanciful hope.

On April 30 the European Commission, the E.U.s executive arm, said in a press release that it has opened formal proceedings to assess whether Metas Facebook and Instagram platforms have breached the Digital Services Act (DSA), a Europe-wide law that took full effect in February 2024 and is designed to deter online manipulation and force tech companies to take greater responsibility for their impact on elections and other aspects of civic life.

Specifically, the Commission said it is investigating suspected infringements related to deceptive advertising and political content on Metas platforms, as well as the companys diminishment of CrowdTangle a tool that formerly provided outsiders, including journalists and researchers with insight into how content spreads on those services. The Commission added that, based on preliminary assessments, it suspects that Metas external and internal mechanisms for flagging illegal content are not compliant with the requirements of the Digital Services Act and that there are shortcomings in Metas provision of access to publicly available data to [outside] researchers.

European regulators are clearly trying to pressure Meta to invigorate its self-policing of disinformation, including content generated by artificial intelligence. The timing is no accident. In early June, the E.U.s 27 member States will hold elections for representatives serving in the European Parliament. The Kremlin has been targeting many of those countries with political disinformation and is expected to step up its online propaganda efforts in an attempt to discourage support for Ukraine in its defensive war against Russian President Vladimir Putins forces.

Commission President Ursula von der Leyens written statement about the investigation is worth quoting at length:

This Commission has created means to protect European citizens from targeted disinformation and manipulation by third countries. If we suspect a violation of the rules, we act. This is true at all times, but especially in times of democratic elections. Big digital platforms must live up to their obligations to put enough resources into this and todays decision shows that we are serious about compliance.

The DSA has teeth. The Commission can fine companies up to 6 percent of their global revenue and has the authority to interview company officials and even raid corporate offices. E.U. regulators are already investigating the content policies and practices of TikTok and X, formerly known as Twitter.

In its response to the Commissions announcement, Meta said in a statement that: We have a well established process for identifying and mitigating risks on our platforms. It added: We look forward to continuing our cooperation with the European Commission and providing them with further details of this work.

In contrast to their European counterparts, U.S. lawmakers, with one striking exception, have failed for over a half-dozen years to pass any of the myriad laws that have been proposed to rein in major tech companies in this country. The exception is the bill that U.S. President Joe Biden signed into law on April 25 that requires ByteDance, the Chinese parent of TikTok, to sell the short-video platform within nine months under threat of a sweeping ban of the service in the United States.

The highly unusual TikTok sale-or-ban law reflects heightened geopolitical tension between Beijing and Washington, as well as the Chinese governments practice of exerting influence over tech companies operating in China. The U.S. State Department issued a reportlast year finding that China employs a variety of deceptive and coercive methods, including propaganda, disinformation and censorship, to influence the international information environment.

TikTok has vowed to challenge the new U.S. law as an unconstitutional government restraint on free speech under the First Amendment. That argument is at least plausible, if not necessarily one that the U.S. judiciary will embrace when it weighs the governments claim that China could use the platform to try to interfere in U.S. elections. Past attempts to ban TikTok by the Trump administration and the state of Montana have been blocked by federal courts.

But setting aside the rather unique dispute over TikTok, the striking thing about U.S. regulation of social media at the national level is its absence. This regulatory vacuum is typically ascribed to two conditions: the extreme political polarization that renders the U.S. Congress dysfunctional on so many fronts and the First Amendments instruction that Congress shall make no lawabridging the freedom of speech.

European nations do not operate under as rigid a prohibition of government regulation of speech, an important factor explaining how the E.U. managed to enact the DSA. But the newly unveiled investigation of Meta illustrates that, possibly with modest modification, European-style regulation could pass muster under the First Amendment.

Forming the foundation of the DSA are a range of provisions requiring that social media platforms disclose how they address problems like deceptive political advertising and other kinds of misleading or hateful content. The European Commission noted in its Meta investigation announcement that the opening of the probe was based on a risk assessment report that Meta (and all other large social media companies) were required to file in 2023, as well as on the companys responses to the Commissions follow-up requests for additional information.

First Amendment absolutists might be skeptical of this sort of mandatory disclosure, seeing it as a precursor to intrusive regulatory action. But theres a strong argument under existing free speech doctrine that requiring businesses to reveal factual information about how they operate does not constitute censorship or anything close to it. Companies in numerous regulated industries from airlines to chemicals are routinely subjected to disclosure requirements, so using this approach would not be novel.

In fact, from what we know so far, nothing about the E.U. investigation of Meta would violate First Amendment strictures. The regional bodys regulators are not dictating that Meta or other social media companies adopt particular policies, let alone specific content practices or decisions. Instead, the E.U. appears to be interested in whether these companies, in general, are providing the kind of resources, personnel, and digital tools that are needed to mount a vigorous defense against manipulation by the likes of Russia or China.

It may be that one or another E.U. demand might turn out to stray over the First Amendment line if it were examined in a U.S. court. But in the main, the European authorities seem concerned about whether powerful social media companies are providing procedurally adequate protections against disinformation and other harmful content that the companies themselves profess not to want on their platforms.

In this sense, early efforts to enforce the DSA shed light on what is at least theoretically possible in the U.S. The NYU Stern Center for Business and Human Rights, where I work, has advocated for Congress to enhance the consumer protection authority and resources of the U.S. Federal Trade Commission so that the FTC could demand procedurally adequate safeguards by social media companies, based on a disclosure regime roughly similar to that imposed by the DSA. If the FTC were restrained from dictating substantive policies or content decisions, this approach ought to be able to survive First Amendment scrutiny. Full disclosure: Less ambitious versions of this idea have appeared in some proposed U.S. legislation, but havent made much progress toward passage.

Under our approach, the U.S. government would not tell platforms what content they could host. Instead, it would require them to institute procedures that follow through on promises they have made in their terms of service and community standards to protect users and society at large.

It is too soon to tell whether the DSA will prove to be a successful experiment in regulation. Meta, TikTok, and X doubtless will push back and appeal any adverse findings. Its not clear whether in this process the European Commission will demonstrate the courage of its convictions. Keeping 27 member States on board wont be easy. But the Commission seems to be trying to make the DSA meaningful, and that alone is something policymakers in Washington could learn from.

Congress, Democracy, Digital Services Act, Disinformation, elections, European Commission, European Union, Facebook, Instagram, Meta, Misinformation, Russia, Social Media Platforms, Technology, TikTok, Twitter, United States

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What U.S. Policymakers Can Learn from the European Union's Probe of Meta - Just Security