Social Media companies set the conditions for online expression within their platforms through privately adopted community standards (Peters, 2017, Balkin, 2018, Gillespie, 2018). They tend to model those on their interpretations Free Speech as defined by the First Amendment of the United States Constitution and its interpretation (Klonick, 2018).
Online platforms operate beyond national borders, and thus, content moderation based on a foreign definition of free expression is likely to enter into conflict with conceptions and interpretations of freedom of expression elsewhere. While it is possible that American Social Media companies do believe that First Amendment values are worth adopting - they are often criticized for not fully understanding the it (Jaffer, 2019) or for only doing self-serving interpretations of free speech (Marantz, 2019) - it is to be expected that other countries will try to impose their own interpretations of freedom of expression within their own jurisdictions (countries tend to prefer to enforce their own laws) and may seek to expand the reach of their laws when they perceive that online, local laws need to be applied beyond their borders to have any real effect (Aswad, 2019; Rosati, 2019; Suzor, 2019).
This is the stance that the European Union and its Court of Justice is taking, attempting to define what freedom of expression is and how it must be interpreted at the global level, challenging the interpretation imposed by the Social Media Platforms. As exemplified by recent CJEU case law in Bolangsypplysningen v Svensk or Glawischnig-Piesczek v. Facebook, European courts are seeking to make it possible for local parameters for content moderation and interpretations on the limits of freedom of expression to be applied globally.
While one could argue that European Conceptions of Freedom of Expression are at least equally as worthy as US First Amendment interpretations of the same right, trying to apply local or even regional constitutional law in a worldwide scale seems problematic. First, because it may not respect international law and comity. Second, because the adoption of similar criteria by other jurisdictions can enable attempts to censor content globally in accordance with laws of countries that may have more restrictive approaches to free expression. This also raises concerns about other states’ ability to guarantee the free flow of information and ideas within their own borders when third states seek the global application of their laws.
In order to highlight these problems, this work takes a look specific instances of content moderation on social media at a global scale applied by private platforms, analyzes relevant CJEU case law that seeks to apply European legislation globally, and highlights initiatives by EU regulators, namely proposed changes Regulation (EU) 2016/794 that governs Europol, and that intend to adopt private social media community standards as pragmatic attempt to adopt uniform parameters that allow law enforcement to take down illegal content all across the EU. This, ironically, reveals that the tug of war is happening from within the Union, and not just across the Atlantic.