With a letter dated October 10th, the commissioner Breton informed Elon Musk that X is being used to spread illegal content and disinformation in the EU, reminds him of the rules imposed by the Digital Service Act in terms of content moderation and warns him that he has received news from “qualified sources” of the circulation of – and I quote – “potentially illegal content” still available despite the reporting by the authorities competent. Finally, concludes Breton, it is mandatory (“you need to have in place” says the letter) to have adopted effective measures to reduce the risk to public order and safety deriving from the spread of disinformation, expecting (not hoping for, but “expecting”) a contact with the police authorities and Europol to immediately follow up on their requests.
I The final tones adopted by Breton are certainly justified by the gravity of the situation contingent and the need to intervene immediately, but their legal basis remains difficult to maintain and constitutes a worrying setback in terms of compliance with the rule of law, the primacy of the law.
War in Israel The EU against Musk: X spreads illegal content and disinformation 10 October 2023
Terrorism and national security are matters reserved to states
Article 4 of the Treaty of the European Union explicitly says that public order, public safety and national security are matters under the jurisdiction of the Member States. Even the legal qualification of criminally relevant illegal content belongs to the national legislator because in criminal matters the legal reservation in favor of Parliament is absolute and cannot be limited by external powers (otherwise, giving a deliberately paradoxical example, the EU could force us to adopt the death penalty even if the Constitution does not allow it).
This means, limiting ourselves to Italy, that the prevention of terrorism falls to the Presidency of the Council by virtue of law 124/07 and to the Ministry of the Interior which, through the national and provincial bodies, exercises the powers of authority for the protection of public order and safety, according to the principles of law 121/81. The prevention and control system is completed by the legislation on special surveillance established by the Anti-Mafia Code, the application of which is monitored by the criminal judge.
Illegal content is judged by national criminal courts
As regards illegal contents, since they are “objects” whose creation, diffusion and promotion are criminally relevant, only a national judge – or as a matter of urgency a public prosecutor – could issue orders to blackout or remove content. Once again, speaking of Italy, this is possible by applying the Mancino Law on hate speech or article 528 of the Criminal Code on the dissemination of obscene or gruesome content. The reference to the “national judge” is particularly important because each country has its own legal sensitivity regarding issues such as freedom of expression and therefore it is unthinkable that the qualification of “illegality” of a content is decided without a judicial proceeding and therefore without the procedural guarantees guaranteed by every Western system.
The limits of EU powers
Consequently, it is quite difficult for a European Commissioner to have any legal right to establish the criminal nature of a content, to request its removal and to request collaboration with police authorities (who either have the legal power to impose blackouts and seizures, and then they do not need reinforcements, or they do not have this power and therefore do not receive new powers from Breton’s letter) and with agencies – such as Europol – which despite their name do not have the status of judicial authority because there is no “European police”.
The political meaning of Breton’s letter
If, therefore, Breton’s letter is legally worthless, from a political point of view it raises many doubts because it suggests one vision of law as an instrument for the exercise of power and not as a limit to the exercise of power itself. Not, therefore, rule of law before which even the rulers (and even more so those who lack political sovereignty) must bow but rule by lawthat is, an instrument to be bent to the contingent needs of executives (but the EU Commission is not), regardless of rules and limits.
A heavy blow to the system of rights and the separation of powers
But that’s not all, because the “unsaid” of this message is deafeningly clear: freedom of expression must be limited when it “displeases” the power even in times of peace and before – and without – a judge has been able to exercise his function of guarantee.
This is the same attitude that the European Union is having towards another fundamental right – privacy – with the proposal to make the client side-scanning, that is, the preventive and automatic search of every device in search of… yes, them: illegal content (this time, in the form of child pornography material). And it matters little if the vast majority of citizens have nothing to do with these atrocities. He who has nothing to hide has nothing to fear, as someone said already at the end of the 19th century.
A worrying scenario
In summary, therefore, in a geographical-economic area made up of 27 countries that recognize themselves in the Nice Charter and even before that in their respective national constitutions (whose legal framework has, in fact, allowed their accession to the EU Treaty) and where rights fundamental rights, primacy of law and separation of powers constitute the sacred Trimurti for the protection of citizens, a single representative of a body without autonomous political sovereignty replaces himself in the exercise of powers that belong to the Member States in deciding which fundamental rights should be limited and how.
Quite apart from anything else, this is not a good show of coherence on the part of the European institutions.