Chicago Journal of International Law

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This Essay discusses the Digital Services Act (DSA), the new regulation enacted by the EU to combat hate speech and misinformation online, focusing on the major challenges its application will entail. However sophisticated the DSA might be, major technological challenges to detecting hate speech and misinformation online necessitate further research in implementing the DSA. This Essay also discusses potential conflicts with U.S. law that may arise in the application of the DSA. The gap in regulating the platforms in the U.S. has meant that the platforms adapt to the most stringent standards of regulation existing elsewhere. In 2016, the EU agreed with Facebook, Microsoft, Twitter, and YouTube on a code of conduct countering hate speech online. As part of this code, the platforms agreed to rules or Community Guidelines and to practice content moderation in conformity with them. The DSA builds on the content moderation system by enhancing the internal complaint-handling systems the platforms maintain. In the meantime, some states in the U.S., namely Texas and Florida, enacted legislation prohibiting the platforms from engaging in viewpoint discrimination. Two federal courts of appeals that have examined the constitutionality of these statutes under the First Amendment are split in their rulings. This Essay discusses the implications for the platforms’ content moderation practices depending on which ruling will be upheld.

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