The free-speech billionaires are losing the war

The tensions between free speech absolutism and the rules and laws that apply outside social media have been exposed quite explicitly by the arrest of Telegram’s Pavel Durov in France a week ago and the shutting down of Elon Musk’s X in Brazil at the weekend.

X Corp announced on Saturday that it would close its Brazilian operations after Brazil’s Supreme Court gave it 24 hours to name a new legal representative in the country or face closure.

X owner Elon Musk was furious at the move by Brazil’s Supreme Court.Credit: Stephen Kiprillis

Justice Alexandre de Moraes, who had frozen X’s finances in Brazil, also ruled that anyone trying to circumvent the effect of his orders by using a virtual private network to access X would face daily fines of about $13,000.

X, which had an estimated 20 million average daily users in Brazil, has been engaged in an escalating dispute with the judge after he ordered the platform to remove some accounts as part of a broad crackdown on accounts deemed to be promoting hate speech and disinformation that relates to the 2022 Brazilian elections, where claims of hacking and vote stealing resulted in supporters of former president Jair Bolsonaro rioting and storming Brazil’s Congress and other government buildings.

“Extremists groups and digital militias,” the judge said, had used X for “massive dissemination of Nazi, racists, fascist, hateful and anti-democratic speech”.

Musk has accused the judge of censorship and overreach, saying that free speech is the bedrock of democracy and that the judge was destroying it for political purposes. He said, without elaborating, that De Moraes had issued orders that would require X to break Brazilian, Argentinian, US and international law. Musk declined to appoint a new legal representative.

Musk’s confrontation in Brazil came a week after France arrested Telegram’s Durov over the claimed use of the encrypted platform by criminals, paedophiles, terrorists, money launderers and human traffickers and Telegram’s failure to moderate that content or co-operate with law enforcement agencies.

Telegram, which is thought to have more than 950 million users but only about 50 employees, notionally does do some moderating of its content and claims to remove millions of pieces of dangerous content daily. The company, however, also says on its site that “to this day, we have disclosed 0 bytes of user data to third parties, including governments”.

In response to the arrest of its founder, Telegram said it was “absurd to claim that a platform or its owner is responsible for abuse of that platform”. That is a view Musk would share.

If Durov and/or his executives aren’t responsible for criminal activity on their platform, who is?

Free speech absolutists like Musk argue that any intervention by governments or their agencies in their businesses is an assault on free speech; that somehow social media platforms should be able to operate in an environment free of the laws that pervade the rest of their societies.

If Telegram has been facilitating the types of activity it is accused of, while making no meaningful effort to restrict that activity, it isn’t immune from real-world consequences. The digital world doesn’t confer immunity in the real world.

Musk, who sees moderation as censorship and X as an unfettered public square vital to democratic societies, unsurprisingly rushed to Durov’s defence, posting on X: “Liberté, Liberté, Liberté” in calling for Durov’s release and saying he, Musk, might have to limit his travels to countries where free speech was constitutionally protected.

He is right to be concerned about, not so much the prospect of being jailed, but the demonstration France has provided that there are limits to governments’ tolerance of some of the uglier elements of social media.

Telegram co-founder Pavel Durov was arrested over the claimed use of the encrypted platform by criminals.Credit: AP

The European Commission has targeted X under its new Digital Services Act, accusing it of breaching European Union laws by allowing disinformation and illegal hate speech to flourish on its platform, failing to moderate the content and preventing external researchers from scrutinising its content.

X could either be banned from offering its services in the EU, where it has more than 45 million active monthly users, or fined up to 6 per cent of its global revenues.

Libertarians are outraged at the arrest of Durov and X’s eviction from Brazil, but enabling criminality or hate speech or disinformation was always going to produce a response.

Musk gutted the platform formerly known as Twitter of almost all of its content moderators in pursuing his concept of free speech (and, like Telegram, to lower costs) while other platforms, such as Facebook, at least make some effort, token or otherwise, to monitor and police their content.

The digital world doesn’t confer immunity in the real world.

By allowing their platforms to host content that wouldn’t be tolerated outside the digital environment, Durov and Musk have invited a response from lawmakers and regulators.

They’re getting it, whether in France or the European Union more broadly, or Brazil or the UK, which passed a law last year that holds technology company executives personally responsible if their company doesn’t remove content that risks the safety of children.

The new UK Labour government is considering bolstering its online safety regime after far-right disinformation following the killing of three young girls in a knife attack that sparked widespread and violent riots.

The US is more of a free-for-all when it comes to speech but, even there, there is pressure on the platforms, if not from government directly then from users and advertisers. X has lost a massive amount of advertising revenue as the nature of the unmoderated content it now hosts has changed.

While it is desirable that speech be as free as possible, the invisible line that divided conventional speech from digital speech is now being drawn quite visibly in more jurisdictions, with the platforms increasingly accountable, if not directly for the content they host, then for the systems and processes they have in place to try to monitor and moderate that content to filter out extremism and criminality.

If they don’t have those capabilities and aren’t willing to co-operate with reasonable requests for assistance from the authorities – requests they could, if they wished, challenge in the courts if they involve perceived unjustified or unlawful breaches of the individual rights of their users – they invite a response from lawmakers.

In the current environment, free speech absolutism is, as Musk has discovered, a pathway to commercial fragility as revenue and audiences bases are shrunk, voluntarily or, as in Brazil, involuntarily. As Durov is now experiencing, there’s also the potential for something far more unpleasant.

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