Breton’s letter to Elon Musk exposes a serious problem (but it is the EU, not X)

In a letter dated 10 October, Commissioner Breton informed Elon Musk that X is used for disseminating illegal content and disinformation within the EU. He reminded Musk of the regulations imposed by the Digital Service Act in terms of content moderation, and warned that he had received information from “qualified sources” about the circulation of—quoting verbatim—”potentially illegal content” that remains available despite notification from relevant authorities. Lastly, Breton states that it is obligatory (“you need to have in place” reads the letter) to have implemented effective measures to reduce risks to public order and safety arising from the spread of disinformation. He expects — expects, not hopes— immediate compliance with requests from police authorities and Europol. by Andrea Monti – Initially published in Italian by Strategikon – an Italian Tech blog

The unequivocal tone adopted by Breton is undoubtedly justified by the severity of the current situation and the need for immediate intervention. However, its legal foundation remains tenuous and represents a worrying retreat in respecting the rule of law.

Terrorism and National Security are Matters Reserved to States

Article 4 of the Treaty on European Union explicitly states that public order and national security fall under the jurisdiction of Member States. The legal qualification of criminally relevant illegal content is also a matter for national legislators because the prerogative of creating laws in criminal matters is solely vested in the Parliament and cannot be constrained by external powers, otherwise, to set a deliberately provocative example, the EU could impose the death penalty even where national constitutions do not allow it. This means that, focusing solely on Italy, the prevention of terrorism remains responsibility of the President of the Council of Ministers under law 124/07 and the Ministry of the Interior, which exercises authority over national and provincial branches for public order and safety as guided by law 121/81. Surveillance measures are further guided by anti-Mafia law, under the watch of criminal courts.

Illegal Content are Judged by National Criminal Courts

Regarding illegal content, only a national judge—or, in urgent cases, a public prosecutor—could issue orders for blocking or removal. In Italy, this is feasible through the application of the Mancino Law on hate speech or Article 528 of the Penal Code concerning the spread of obscene or horrifying content. The term “national judge” is particularly significant because each country has its own legal sensibilities about issues like freedom of expression. Therefore, the qualification of the “illegality” of content cannot be determined without judicial process and the procedural guarantees afforded by Western legal systems.

Limits of EU Powers

Consequently, it is highly unlikely that a European commissioner would have any legal standing to determine the criminally relevant nature of a content, request its removal, and demand cooperation with police authorities or agencies like Europol, which, despite its name, does not possess the status of a law enforcement body as there is no “European police.”

Political Implications of Breton’s Letter

Thus, if Breton’s letter is legally void, it raises numerous political concerns as it suggests a view of law as a tool for exercising power, rather than as a constraint upon it. It embodies not the rule of law but rule by law, an approach that bends law to the needs of the executive, irrespective of rules and boundaries.

A Blow to the System of Rights and Separation of Powers

What’s more, the “unsaid” in this message is resoundingly clear: freedom of expression should be curtailed when it “displeases” those in power even in times of peace and before—and without—a judge exercising his role of safeguard. This reflects the EU’s current stance on another fundamental right—privacy—by proposing obligatory client-side scanning, which is essentially pre-emptive and automatic inspection of each device in search of, precisely, illegal content. And it matters little if the overwhelming majority of citizens have nothing to do with such atrocities. As someone once said in the late 19th century, if you have nothing to hide, you have nothing to fear.

A Troubling Scenario

In summary, in a geo-economic area comprising 27 countries that recognise the Charter of Nice and, even before that, their own national constitutions (which have legally enabled their accession to the EU Treaty) and where fundamental rights, rule of law, and separation of powers constitute the sacred triumvirate for the protection of citizens, a single representative of a body devoid of autonomous political sovereignty takes it upon themselves to decide which fundamental rights should be limited and how.

Regardless of other considerations, this is hardly a commendable demonstration of coherence from European institutions.

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