US Faces Uphill Battle With EU Leviathan Over Tech Regulation, Experts Warn

The EU’s centralized decision-making and legal framework make it difficult for member states to alter or retract the Digital Services Act, say MEPS.

A photo of logos of major social media platforms and companies taken in Canberra, Australia, on Nov. 7, 2024. Lukas Coch/AAP Image

The Trump administration has hinted at a showdown with Europe over regulation of Big Tech.

On many battle fronts with Europe, the United States can squeeze or tempt individual nations into helping shape the continent’s response, or it can deal with issues nation by nation.

However, when it comes to the EU’s flagship internet control laws—which the United States says gag free speech—even if Europe’s leaders and nations want to water it down, ignore it, or retract it, they are powerless.

To wrest back internet controls, say experts, the United States will have to grapple directly with the regulatory leviathan of the European Union itself, its 800 members of the European Parliament, and its complex politics.

The Digital Services Act (DSA) and the Digital Markets Act (DMA) form a single set of rules under the Digital Services Act package that apply across the European Union.

Last month, the chairman of the U.S. Federal Communications Commission (FCC), Brendan Carr—a Republican appointed to the FCC helm by President Donald Trump in January—said that DSA’s approach was “something that is incompatible with both our free speech tradition in America and the commitments that these technology companies have made to a diversity of opinions.”

In February, Rep. Jim Jordan (R-Ohio) said that he wants clarity on the accusation that fines from DMA cases are a “European tax on American companies.”

Adina Portaru, who is senior counsel for Europe for U.S. faith-based legal advocacy organization ADF International, shared the Trump administration’s concerns and said the DSA has a “censorious effect” on online speech.

Portaru told The Epoch Times by email that “momentum is building both within and outside the EU against the DSA and we continue to monitor the situation for potential avenues to challenge or support efforts to repeal the legislation.”

However, the EU has repeatedly disagreed with the United States’ claims of censorship and has said that the law is meant to make the online environment safer and fairer by compelling tech giants to do more to tackle illegal content, including hate speech and child sexual abuse material.

Those familiar with the inner workings of the EU warn that overturning the legislation will be much harder than pushing a single nation to change its laws.

German MEP Christine Anderson, who is a politician for the right-wing Alternative for Germany (AfD), points out that EU lawmakers are very limited in what they can do.

She told The Epoch Times the EU Parliament itself does not propose new legislation; it can only pass it, which limits what politicians can do.

The European Parliament and European Council work together to adopt or amend proposed laws, but the European Commission is the primary proposer.

“What we are doing is, we’re pretty much passing resolution,” she said.

MEPS can send nonbinding resolutions, which express their opinions or requests to the commission or council but do not have legal effects.

‘Passing a Beggar’s Letter’

She characterized this as “passing a beggar’s letter,” where MEPs write to the commission and say, “Well, it would be nice if you could do this, that, and the other.”

“But they don’t need to do any of that. So the commission is the government,” she said.

She said they’re “the only ones” who can initiate legislation.

Rodrigo Ballester, head of the Centre for European Studies at Mathias Corvinus Collegium, who worked for 15 years in EU institutions, told The Epoch Times that the EU could change direction, but it is difficult.

“When the outrage is too big, then they can change the direction,” he said.

He said that if there is really strong pressure from the international context, or the member states, or maybe the industry, this could happen.

“Imagine, for example, that Facebook and Twitter decide to stop, you know, providing their services in Europe, or something ... as catastrophic as that, maybe they will reconsider it,” he said.

“But again, ’reconsider' means to table a new proposal which takes a bit of time, and then to go through the ordinary procedure which parliament and council must agree.”

Ballester described the DSA as a “centralized piece of legislation.”

He said that in the EU, there are two different kinds of legislation: directives and regulations.

Directives give EU member states a certain amount of flexibility on how to implement their requirements.

Regulations, which the DSA is, are directly applicable and enforceable in all member states without requiring national implementing legislation.

“Once it’s published, it has legal effects. It is legally binding, and the DSA is a regulation,” Ballester said.

The DMA is focused on ensuring fair and open digital markets, while the DSA is geared toward more rigorous content moderation, user rights, and ensuring transparency, whether they are established within or outside the EU.

The former regulates the gatekeeper power of the largest digital companies, while the latter legislates social media platforms to remove illegal content, conduct risk assessments, prevent illegal and harmful activities online, and curb the spread of “disinformation.”

Failure to follow the rules would be costly. Fines for noncompliance can reach up to 10 percent of a company’s global annual turnover, increasing to 20 percent for repeated offenses.

Ballester said the conditions, especially for very large online platforms—what they call VLOPs (very large online platforms)—oblige them to be the “censors” and “policemen of freedom of speech,” responsible for content.

While the regulation concerns Big Tech, the nature of it means “it’s almost impossible now for member states to depart from this regulation,” he said.

“And it’s, of course, so very, very burdensome on the online industry, on the companies, on the platforms, especially the very large ones,” he added.

He said that companies such as Meta and Google are bound by the “policemen of this law”—the European Commission.

“They can impose fines directly. They don’t need to go through the national governments. They can do it directly. And so that’s why here, the margin of maneuver of the member states is very limited, it’s a very centralized piece of legislation,” he said.

‘More Fierce’

Supporters of the Act say that Trump’s tariffs should not dissuade the EU from cracking down on technology companies.

In a jointly authored article, tech experts Jakob Ohme, LK Seiling, and Claes H. de Vreese wrote that European leaders must protect the DSA.

Published in TechPolicy.News, the article said that the EU is “at a make-or-break moment, a twilight situation in which the DSA could be up or out.”

The authors said that if the platforms don’t comply, then the EU “would lose time in lengthy court battles, and in the end—as stipulated in the DSA—platforms could be banned from the European market.”

But “the pushback from the population would be huge and could put the EU in domestic trouble,” they said.

However, they added that the DSA is “imperfect and is not immediately ready to defend us against all the threat vectors that digital platforms expose.”’

They suggested that the European Commission needs to “continue to enforce the Digital Services Act and re-up its game by getting faster and more fierce.”

“From the perspective of civil society organizations, NGOs, scientists, and governments, who have worked long and hard to arrive at the DSA framework, using it as a global bargaining chip in geopolitical clashes is wrong,” they said.

Norman Lewis, visiting research fellow at the think tank MCC Brussels and formerly PwC director and director of technology research at Orange UK, told The Epoch Times that there have been no signals of change from the commission.

“It is difficult to predict,” he said.

“I cannot see how they can step down on this as there is so much at stake to their legitimacy on this. I can see some compromise behind closed doors, but publicly, they will have to stick to their guns. So far, they have shown they are willing to dig in.

“I attended a meeting in the EP [European Parliament] in Belgium two weeks ago, reporting on the DSA implementation—there was no hint of a change or compromise. Compromise might happen, but they won’t scrap the DSA.”

While he is a critic of the legislation, he does not support Trump’s use of tariffs to “bludgeon” the EU and the DSA.

“That is the weaponization of trade to interfere in the internal affairs of another state—it is foreign intervention,” he said.

“Free speech is not something handed down to us from on high. Freedom can only ever be won, never gifted—even from a Trump administration. It is in the act of fighting for freedom that we become free.”

Reuters contributed to this report.