The Digital Platforms’ Sisyphean Task: Reconciling Content Moderation and Freedom of Expression

Given the increasing importance of online platforms as a source of information and opinion formation, content moderation unsurprisingly came into the focus of the recent European Union’s legislative efforts. From the freedom of expression perspective, the content moderation activities may lead to excessive filtering of users’ content, in contradiction with the formal absence of general monitoring and filtering duty in EU law. Another concern stems from the use of recommender systems. Such algorithm-driven content delivery on social media, search engines and other platforms limit the content to which people are exposed, leads to ‘information bubbles’ and may negatively affect democratic discourse as a result. Further concern from the freedom of expression perspective is reflected in the use of content demotion mechanisms by online platforms in addressing ‘borderline content’, i.e. content which is not illegal nor in violation of platforms terms of service but rather undesirable. The use of such techniques clearly generates risk of censorship. The paper addresses these concerns while providing an analysis of relevant provisions of the Copyright in the Digital Single Market Directive and the Digital Services Act.