Abstract
In recent decades, online platforms have transformed how people communicate and interact. Speech on platforms has enabled commerce, driven political processes, facilitated revolution, and built communities. Distinguishing between beneficial and harmful content, however, has grown increasingly difficult. Beginning with the new legal framework for the illegal distribution of copyrighted works and the dissemination of audiovisual and terrorist content, the E.U. has taken the global lead and change in regulating online speech. The culmination of this approach has been the recent adoption of the Digital Services Act (DSA), which promises to revolutionize online platforms’ liability. This Article argues that the new E.U. content moderation approach will significantly affect the most prominent U.S. digital service providers and undermine some fundamental freedoms in ways that have yet to be recognized.
This Article provides a novel perspective on analyzing the E.U. content moderation approach by placing the DSA within the broader context of its interaction with existing E.U. legal instruments applicable to online platforms. When considered in the context of the E.U.’s sectoral regulation for specific types of content and national laws for Member States, the DSA may profoundly change the landscape of online speech in the U.S. and worldwide. The predominant framework through which the E.U. addresses the risks and shortcomings of online platforms is that of fundamental rights. Platforms are, therefore, expected to assess the legality of content in a wide range of sectors, ranging from copyright and audiovisual content to content linked to terrorism under a plurality of applicable legislation. In other words, online platforms should consider free expression and balance it with other fundamental rights.
However, the E.U. legislation lacks detailed guidance on what balance should be performed and how to achieve that balance in practice. In addition, platforms must rely on algorithmic tools that are far from perfect. Therefore, this Article concludes that despite the large number of new rules in the new E.U., significant legal uncertainty persists, which will pave the way for the sterilization of speech across borders. The U.S. is a particularly fertile soil for speech sterilization, considering that protection of U.S. free speech rights considerably differs from those in the E.U., still conferring immunity upon intermediaries for the user’s expression. Therefore, the scope of these changes is significant, as a whole new generation of Americans will grow up in a world where the main moderators of online discourse will adopt new values alien to U.S. tradition.
Recommended Citation
Jelena Laketić,
Sterilized Speech: The U.S. Impacts of E.U. Digital Service Rules,
73 Clev. St. L. Rev.
1005
(2025)
available at https://engagedscholarship.csuohio.edu/clevstlrev/vol73/iss4/8