Balancing private and public interests in content moderation

In November 2024, the EU and South Korea strengthened online content moderation requirements. X Corp. challenged the constitutionality and legal validity of California (USA) bill requiring online platforms to remove or label materially deceptive election-related content.

The EU experience

The European Commission has adopted an implementing regulation to the Digital Services Act on new transparency reporting rules for providers of intermediary services and online platforms. It will enter into force on July 1, 2025.

The Act requires intermediary service providers and online platforms to publish in machine-readable format, at least once a year, reports on any content moderation by them, including information categorized by type of illegal content on: moderation measures taken on their own initiative; the number of content complaints received through the provider's internal systems and their resolution; and the use of automated moderation tools, including specification of their purposes and accuracy indicators.

The regulation stipulates that:

(a) reports should be filed in CSV or XLSX format in the form in Annex I to the regulation. Includes 15 content categories to categorize information, which increases the comparability of reports from different companies. б) The reporting periods for very large online platforms are January 1 through June 30 and July 1 through December 31. в) Reports should remain available for 5 years.

South Korea experience

Following Mr. Durov's arrest in August 2024 in France (see Monitoring No. 8), Telegram began cooperating with law enforcement agencies in other countries, including South Korea.

In November, Korea Communications Commission sent a request to Telegram to combat the distribution of illegal content, including sexually explicit deepfakes, on its platform and to appoint a responsible youth protection manager to encourage Telegram to strengthen its internal regulation. Telegram has complied with the request and, in cooperation with the Commission through the appointed manager, plans to block information harmful to young people.

The US experience

On November 14, 2024, X Corp. filed a lawsuit against California authorities regarding the Defending Democracy from Deepfake Deception Act of 2024 (AB 2655). The Act requires large online platforms such as X Corp. to remove or label content about candidates, election organizers, and elected officials that the state deems “materially deceptive ” and to create a mechanism for residents to report such content to the platform.

X Corp. is seeking an injunctive relief against the enforcement of this bill because, according to the company, the bill results in the state, rather than the platform, even with a content moderation system, deciding what content will appear on the platform, which is contrary to the free speech protections of the First Amendment to the U.S. Constitution and Article I, Section 2 of the California Constitution. Thus, the company challenges the constitutionality and legal validity of AB 2655.

It is important that the definition of materially deceptive content in the bill is not limited to deepfakes and chatbot outputs. The bill contradicts the Supreme Court's position in Moody v. NetChoice LLC 2024: when a platform presents a curated and edited compilation of a speech, it is itself protected speech.

X Corp. emphasizes that companies cannot be assured of compliance with AB 2655 because its definition of content is based on many undefined or evaluative concepts. For example, such terms include “satire” and “parody” because content, including deepfakes, created in this capacity is not subject to removal and labeling requirements.

Also, according to X Corp., the bill conflicts with national telecommunications regulation, which prohibits online platforms from being treated as publishers/speakers with respect to information from other content providers. The company cites, among other things, the court's position in Calise v. Meta Platforms Inc. 2024, that this statutory provision protects Meta from requirements to review and evaluate third-party advertisements.

Russia’s experience

In Russia, it is becoming expensive not to remove illegal online content. At the beginning of November, several technology giants were handed significant fines for violating Part 2, Article 13.41 of the Administrative Offences Code of the Russian Federation.

In addition, in November, amendments to the Federal Law “On Information” were adopted, prohibiting the dissemination of information on the Internet that promotes childfree propaganda (clause I of Article 10-6). Dissemination of such information can lead to extrajudicial blocking of an information resource (clause L of Article 15- 1). The problem is that it is not clear whether books about informed parenthood (about the need for preconditions, emotional and material maturity, for childbearing) or public criticism of state demographic programs fall under this category.

From the monitoring issue No. 11, November 2024. Download the full issue (PDF) · issue page at the Gaidar Institute