A fortnight ago, US secretary of state Marco Rubio revoked visas and thus blocked a judge and members of his family from entering the United States.
Accusing the judge of a “political witch hunt” against former Brazilian leader Jair Bolsonaro – a far-right populist with close links to Donald Trump’s “Maga” movement – Rubio maintained that this involved “a persecution and censorship complex so sweeping that it not only violates basic rights of Brazilians, but also extends beyond Brazil’s shores to target Americans”.
“President Trump made clear that his administration will hold accountable foreign nationals who are responsible for censorship of protected expression in the United States”, he said.
Censorship of free speech has become a very important issue for the Trump administration, particularly on restrictions on what is said online.
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Some on the right in the US are concerned that regulations imposed on Big Tech in Europe are blowing back across the Atlantic and targeting conservatives.
In Washington, where Republicans control the White House and Congress, this is a politically explosive charge.
Rubio had announced in late May a new policy that would impose visa bans on foreign nationals the administration deemed to be censoring Americans and suggested this could include officials regulating US tech companies.
He said it was unacceptable for foreign officials to demand American tech platforms adopt global content moderation policies or engage in censorship activity that reached into the United States.
Rubio’s visa ban on the Brazilian judge may not have been headline news internationally, but it was noticed in Brussels and among those regulating Big Tech.
It is understood that following Rubio’s policy announcement in May some figures in Ireland’s media regulatory body, Coimisiún na Meán, made enquiries to the Department of Foreign Affairs as to what this could mean.
No one was really sure.
Coimisiún na Meán is responsible for the application and enforcement of the European Union’s Digital Services Act (DSA) in Ireland. But the European Commission also monitors areas such as ensuring very large online platforms conduct regular risk assessments on illegal content or material that could negatively affect elections, security or public health.
The visa ban on the Brazilian judge showed Washington’s policy shift in May was not just rhetoric; regulators, officials and their families could be banned from entering the United States.
Musk and Zuckerberg
In early July a Christian advocacy group called ADF International argued online that the EU’s DSA represented a threat to free speech “and must be repealed”. Shortly afterward Elon Musk, owner of social media platform X, replied: “Yes”.
It was an indication of the concern among US tech companies at what they saw as unfair overseas taxation and regulation.
In January Meta chief Mark Zuckerberg argued that Europe had “an ever-increasing number of laws institutionalising censorship”.
These comments were rejected by politicians in Europe who, in turn, were alarmed by Musk urging Germans on his social media platform to vote for the far right Alternative for Germany (AfD) party in elections.
Ideological and financial concerns
There was a time when many on the right in the US viewed the tech industry as a bastion of Silicon Valley liberals.
In more recent times, the US tech sector has forged close links with Trump.
The Wall Street Journal reported last month that after Trump’s election last November, tech chiefs including Zuckerberg and Google’s Sundar Pichai met the incoming president at his Mar-a-Lago club in Florida and that the need to curb “harmful policies” overseas consistently came up in their conversations.
The concerns of Big Tech and Trump’s Maga movement appeared to be aligning to a degree.
Dubliner Ian Plunkett, a tech policy analyst in Washington, DC, told The Irish Times that Big Tech companies had adopted a pragmatic approach under the new Trump administration. Those companies that stood by Trump at his inauguration in January were following the power, he said.
Many in Trump’s Maga base considered regulatory enforcement in Europe as an attack on American innovation, he said; in the eyes of those in Trump’s base, US companies had developed this global technology but other countries then had the temerity to impose taxes through the enforcement of regulations that they regarded contrary to their interpretation of the freedom of speech provisions in the US constitution.
Trump supporters may have ideological concerns about European regulators curtailing their free speech, but the US tech sector is also looking at the potential financial impact of European regulations.
It was widely reported in the US in recent months that Musk’s X social media network faced potential fines of up to €1 billion for violations of the EU’s DSA, although this has been denied by the European Commission.
Over recent months the House of Representatives committee on the judiciary, chaired by republican Jim Jordan, has been carrying out an investigation into “how and to what extent foreign laws, regulations and judicial orders compel, coerce or influence companies to censor speech in the United States”.
Last week in an interim staff report, the committee strongly criticised the DSA as “the EU’s comprehensive digital censorship law”.
The report argued that this legislation stemmed originally from claims of Russian interference in elections in the US and in France. In the theology of Maga, this is considered heresy, as it implies that Trump did not win the White House fairly in 2016.
The report describes as “inaccurate” EU claims that the DSA applies only to Europe and that it targets only what is harmful or illegal.
“Non-public documents reveal that European regulators use the DSA to target core political speech that is neither harmful nor illegal and to pressure platforms, primarily American social media companies, to change their global content moderation policies in response to European demands,” the report said.
“Put simply, the DSA infringes on American online speech.”
The report points to an EU Commission workshop last May where, it maintains, a hypothetical social media post stating: “We need to take back our country” was categorised as “illegal hate speech” that platforms were required to censor under the DSA.
The committee described the term as “a common, anodyne political statement”.
“The DSA incentivises social media companies to comply with the EU’s censorship demands because the penalties for failing to do so are large, including fines up to 6 per cent of their global revenue,” the report said.
“If ‘extraordinary circumstances lead to a serious threat to public security or public health in the Union’, regulators are even empowered to temporarily shut down platforms within the EU.”
Ireland ‘unusually exposed’
Members of the House committee that drew up the report were in Ireland this week and held meetings with tech companies and Coimisiún na Meán.
The delegation’s visit also came in the week that X lost a legal challenge to aspects of Ireland’s online safety code that are viewed by the Irish Government as crucial in protecting children.
But it was not the first time that visitors from Washington had travelled to Dublin to discuss online regulation.
Staff at Coimisiún na Meán met representatives from the US state department on May 30th “following a request from the US embassy to better understand its functions and international collaboration”.
On May 19th, state department officials told Coimisiún na Meán the visitors from Washington would “like to understand how Ireland navigates balancing the protection of freedom of expression with the need to address and mitigate hate speech and online harms.
“They would like to understand how the Media Commission approaches implementation of the DSA and domestic hate speech laws, including their impact on American companies.”
A note prepared by Coimisiún na Meán after the meeting said it had provided an introduction to fundamental rights, “including on empowering users who can see if and why their content has been removed or restricted online under the Digital Services Act”.
“Some general discussion on freedom of expression and the differences between US law and European and member state law followed.”
Coimisiún na Meán told The Irish Times in June that the US officials “did not seek any changes to any aspect of An Coimisiún’s regulatory work at this meeting, nor did they express any concerns in relation to it”.
The US state department said officials from the bureau of democracy, human rights and labour had visited Ireland “to underscore the administration’s support for freedom of expression and the ability of all voices to be heard in the political process and to learn more about the Irish government’s approach to protecting human rights”.
Dr TJ McIntyre, associate professor at the Sutherland School of Law in UCD and chair of civil liberties group Digital Rights Ireland, said the fact that so many big tech companies have headquarters in this country meant Ireland was “unusually exposed” in the arguments over regulation and censorship.
The extent to which Irish law affected some of the right-wing agenda being promoted by some firms and their owners meant “you can expect further interference in the Irish democratic process” to try to enable them to continue with that agenda, he said.
