Meta, X, and TikTok are under greater pressure from Europe than the U.S. to combat disinformation related to the Israel-Hamas war.

• During the outbreak of the Israel-Hamas conflict, a European regulator cautioned social media platforms to remain diligent in content moderation and emphasized that they could face penalties if they failed to safeguard their sites.
• The warning is more severe than what could be issued in the U.S., where the First Amendment safeguards many forms of offensive speech and prohibits the government from suppressing it.
• The Digital Services Act, enacted by the European Union, mandates large online platforms to reduce the risk of disinformation.

Following the outbreak of the Israel-Hamas war, European regulators issued a warning to social media platforms like Facebook, TikTok, and X (formerly Twitter) to be cautious about spreading false information and inflammatory content related to the conflict.

Thierry Breton, the European Commissioner for the internal market, issued a warning to businesses about the consequences of not adhering to the Digital Services Act's rules on illegal online posts in the region.

"If an investigation is opened and non-compliance is found, penalties may be imposed," Breton wrote to Elon Musk.

The warning is stricter than what is typically seen in the U.S., where the First Amendment safeguards many forms of offensive speech and prevents the government from suppressing it. In fact, the ongoing legal battle between Republican state attorneys general and the U.S. government centers on the latter's attempts to pressure platforms to regulate misinformation about elections and Covid-19.

The Biden administration is facing legal challenges over its efforts to pressure social media companies to remove posts that violate its guidelines. An appeals court has ruled that the White House, the Surgeon General's office, and the Federal Bureau of Investigation may have violated the First Amendment by compelling content moderation. The Supreme Court is now considering whether the restrictions on the administration's contact with online platforms, imposed by a lower court, will be upheld.

David Greene, Civil Liberties Director at Electronic Frontier Foundation, stated that the U.S. government cannot constitutionally send a letter like Breton's messages.

According to Kevin Goldberg, a First Amendment specialist at the Freedom Forum, the U.S. does not have a legal definition of hate speech or disinformation because they are not punishable under the constitution.

According to Goldberg, the First Amendment has very limited exceptions for hate speech and misinformation. For instance, statements that incite imminent lawless violence may be exempted, while forms of misinformation that violate laws about fraud or defamation may be punished.

The First Amendment may render certain provisions of the Digital Services Act ineffective in the U.S.

In the U.S., government officials should not use social media to pressure others to take action in a particular area, as the EU regulators are doing in the Israel-Hamas conflict, because doing so is a form of coercion, even if they do not explicitly threaten punishment.

Christoph Schmon, EFF's international policy director, views Breton's warnings as a "cautionary signal" that the European Commission is closely monitoring platforms' activities.

Under the DSA, large online platforms must have strong processes for removing hate speech and disinformation, but these must be balanced against the need to protect free expression. Failure to comply with the rules can result in fines of up to 6% of a company's global annual revenues.

The possibility of government penalties carries a risk in the U.S.

Greene advised governments to be clear when making requests, emphasizing that they are not threatening enforcement action or penalties.

On Thursday, New York AG Letitia James sent a series of letters to several social media sites, demonstrating how U.S. officials may attempt to navigate that delicate balance.

James inquired about how Meta, X, TikTok, Reddit, and Rumble are identifying and removing calls for violence and terrorist acts. He mentioned the growing antisemitism and Islamophobia that have been reported following the horrific terrorist attacks in Israel.

Unlike the letters from Breton, they do not impose penalties for not removing such posts.

The impact of new rules and warnings from Europe on tech platforms' content moderation approach is not yet clear, both regionally and globally.

Goldberg suggested that social media companies may apply new policies to Europe, as they have previously dealt with restrictions on speech in different countries. However, the tech industry has a history of applying policies like the EU's General Data Privacy Regulation (GDPR) more broadly.

Goldberg stated that users should have the option to adjust their settings to exclude specific types of posts they don't want to see.

Given the intricate history of the Middle East, Goldberg argued that individuals should have access to all the content they require to comprehend the situation and make their own decisions, rather than being restricted to the information the government deems suitable for them to know and not know.