The EU’s Fine Against X is Not About Speech or ‘Censorship’

Don't let anyone — not even the United States Secretary of State — tell you that the European Commission's €120 million enforcement against Elon Musk’s X under the Digital Service Act (DSA) is about censorship or about what speech users can post on the platform. That would, indeed, be interesting. But this fine is just the EU enforcing some normal, boring requirements of its law. Many of these requirements resemble existing US laws or proposals that have garnered bipartisan support.

There are three charges against X, which all stem from a multi-year investigation that was launched in 2023. One is about verification — X’s blue checkmarks on user accounts — and two are about transparency. These charges have nothing to do with what content is on X, or what user speech the platform should or should not allow. There is plenty of EU political disapproval about those things, for sure. But the EU didn’t choose to pick a fight about them. Instead, it went after X for violating much more basic, straightforward provisions of the DSA. Those violations were flagrant enough that it would be weird if the EU hadn't issued a fine.

The ‘blue checks’ charge is about consumer deception. X changed the rules about how it does verification in a way that allowed impersonation and scams to flourish. It’s kind of like if a grocery store said it had vetted all the produce in its special ‘blue check’ section for worms — but then once consumers started relying on that, it actually stopped checking. As the Commission put it, the DSA “clearly prohibits online platforms from falsely claiming that users have been verified, when no such verification took place.” In the US, consumers who were harmed by that kind of bait and switch might also seek protection under laws that prohibit unfair and deceptive commercial practices.

The ‘ads transparency’ charge stems from the DSA’s requirement that platforms must maintain a public archive showing what ads the platform ran, who paid for them, and other information. X fell drastically short of meeting this requirement, according to EU investigators. They found that X’s archive didn't show who paid for ads, what the ads’ content was, or even what general topic areas they fell into.

In the US, this ad archive requirement and other DSA transparency mandates would probably be challenged as speech compulsions under the First Amendment. But there’s a pretty good chance those challenges would fail, given that two circuits have upheld far more searching transparency requirements for platforms. Notably, that includes mandates passed by Republican legislatures in Texas and Florida. FCC Chairman Brendan Carr’s platform regulation proposals in Project 2025 also included mandates for platforms to explain and justify their editorial decisions. As I’ve explained in some very wonky legal analysis, requirements of that sort raise far more serious concerns about state power over online speech than the basic disclosure rules that X violated in the EU.

The third thing the EU penalized X for is not giving researchers better access to public data. This enforcement is not about the DSA’s more famous and controversial requirement for platforms to hand over internal data. It’s just about information that was already publicly available on X’s site and app. The Commission says that X violated the DSA’s transparency requirements by prohibiting researchers from scraping information. It seems to also be saying that X’s process for researchers to use APIs — also for already-pubilc data — were too cumbersome. (A German lawsuit against X made the same point, and documented the stumbling blocks the company has created even for researchers seeking public information.)

A bill to require similar scraping rights and API access — the Platform Accountability and Transparency Act (PATA) — had bipartisan support in Congress when it was reintroduced in 2023. It would have created a safe harbor for researchers to scrape platforms and an obligation for platforms to create mechanisms for them to access public data.

That's it! That's everything X is in trouble for under the DSA, at least for now. Additional investigations, including one focused on Community Notes and another about illegal content, remain open. Those could eventually raise legitimate questions about the limitations that Europe’s own free expression protections under the EU Charter place on DSA enforcement. And of course, the investigation into illegal content will include some expression — like hate speech — that is lawful in the US but not in the EU. European governments want to enforce their own laws inside their own borders, just like any other country.

The fine announced today is important, mostly because it answers longstanding questions about how aggressively the Commission would enforce the DSA in the current transatlantic political climate. But it is also not remotely surprising, given how clearly X was violating some pretty basic legal requirements. And, fundamentally, it is not about speech. Anyone who tells you otherwise is selling something.