On January 7, 2025, Mark Zuckerberg, of Meta (Facebook, Instagram, WhatsApp, etc) made a shocking public announcement that rejected Meta’s current values, moderation standards, and technology. Zuckerberg promised that Meta will transform to match the current American moment, specifically the election of Donald Trump. Meta will “prioritize speech” and “restore free expression” on his platforms by allowing some content previously banned as political disinformation or harassment. While Zuckerberg’s speech and the related changes are clearly an effort to ingratiate Meta with the incoming US president, Zuckerberg also tied his allegiance to a specific rejection of the European Union’s attempts to regulate social media. The main question now is how far has Meta really gone to flout EU law, and how will the EU respond?
Zuckerberg was speaking to an audience of one, and he went out of the way to copy the rhetoric of Elon Musk, who currently has Trump’s ear, by mentioning Musk’s “X” (Twitter) platform, and pledging to implement an “X” style “community notes” moderation system for political content. Beyond promising changes to Meta’s policies that will align his platforms with Musk and Trump, Zuckerberg took time to denigrate the EU’s governments for “institutionalizing censorship”. This is a businessman’s echo of the president elect’s recent economic and military threats against European allies, and Zuckerberg continued with a promise that Meta will work with the Trump administration to protect American business interests and “restore free expression” globally.
These are all astonishing, and very politically charged, words from the head of an international company that depends on its platforms’ reach to sell user data and directed advertising. The European Commission has already responded to Zuckerberg’s attacks, both denying that EU rules stifle free speech, and, on a conciliatory note, pointing out that Meta’s proposed changes, specifically moderation by community note, are not forbidden under EU law, but have not been reviewed or deemed sufficient to meet DSA requirements.
META vs. EUROPE
The conflict between Meta and the European Union isn’t new, even if Zuckerberg’s aggressive tone is. Meta has been a frequent target of Union regulators and is currently liable for billions of euros in fines. Last November the European Commission fined Meta almost €798 million for monopolistic ad sales practices, and in December of 2024 the Irish Data Protection Commission fined Meta €250 million euros for a 2018 breach of its user data. This was only the latest of almost €3 billion euros in GDPR related fines levied against Meta by Ireland since 2022. While the majority of these fines are still being appealed and resolution is unlikely anytime soon, the relationship between Meta and Europe appears to have been in steady decline. On issues of DSA compliance, the European Commission began formal proceedings against Meta in April and May of 2024 to investigate both Meta’s treatment of children and its potential violations of a large variety of the DSA’s regulations on political disinformation, transparency, and moderation.
With this history it’s clear that with or without Zuckerberg’s January 7th speech and related changes to his platforms, Meta is almost certainly violating the DSA, and EU regulators are very likely to continue to find Meta liable for fines under the DSA and other regulations. With potential fines under the DSA reaching 6% of yearly revenue (around €9.4 billion for Meta based on 2024 numbers) this isn’t a situation Meta can afford to continue. At the core of the problem is that Meta’s business of data collection and targeted advertising is something EU governments increasingly regards as harmful to their citizens’ right to privacy. Conflict is inevitable unless the fundamental values of Europe’s governments change. What’s less inevitable is Meta ever actually paying billions of euros to EU regulators … not because Meta has especially powerful arguments in its appeals, or can change its practices, but because Zuckerberg’s speech may have made Meta’s compliance with EU laws a question of international relations instead of regulatory law. Zuckerberg seems to have pledged his companies’ loyalty to US Republican party and its political goals in exchange for freedom to act in the United States and US government protection from foreign regulators who seek to punish Meta for hosting illegal content, allowing security breaches, or spreading dangerous propaganda.
LOCATING META’S LIABILITY
The actual changes to Meta’s written Terms of Service are perhaps less extreme than Zuckerberg’s rhetoric. Meta’s January 7th amended Terms of Service retain many of the basic protections that allow Meta’s platforms to function, such as bans on language used to promote sectarian violence, though some have been de-emphasized or reworded. As Zuckerberg promised, specific terms have been changed for the worse, especially those protecting gender minorities and immigrants from harassment. Of course these are also the favored targets of Trump’s party, so allowing misinformation and attacks on them is necessary if Meta is to become a platform for US conservative propaganda. The result will be a torrent of threat, insult, and vile rhetoric directed at vulnerable individuals and groups.
However, purely as legal language, Meta’s terms of service continue to provide for broad enforcement against hateful conduct … if Meta chooses to do so. As written, Meta’s changes don’t look to violate the requirements of EU law any more than prior versions did, and some may even meet some DSA requirements better than prior versions by including avenues for user feedback and dispute. The danger of Meta’s new policies is less in how they are written and more how and against who they will be enforced.
Meta also states that its changes to moderation will impact US users first and perhaps never reach those in the EU, but again, it’s unclear how much that matters in terms of Meta being fined for failure to moderate hateful or dangerous content under the DSA. The ongoing regulatory actions already include both of these topics as potential violations of the DSA, even if they emphasize other compliance issues. What Zuckerberg’s speech and changes to Meta’s policies will accomplish is to focus discussion of Meta’s DSA violations on the regulation of “speech” that EU law considers illegal content or harmful misinformation. This will bring controversy to the fore of any regulatory action, allowing Meta to highlight claims that conservative messages are being removed or censored more than others (perhaps true, but largely because American style conservatism often promotes misinformation, incitement, and hate speech).
Shifting the conflict from European law to speech rights may benefit Meta with the public, and will also highlight some of the more permissive, heavily debated, and less defined areas of the DSA. Yes, The DSA creates legal duties for very large platforms regarding illegal, harmful, and deceptive content, but many of these relate to the processes of moderation and its transparent application, rather than what content is allowed or forbidden. The DSA threatens penalties for platforms that learn they are hosting “illegal content” and fail to remove it, and the DSA’s view of illegal content is a broad definition, potentially including any content illegal under national EU laws. Yet, since the DSA is an untested law, the exact outline of what is and isn’t illegal content is still being determined. Additionally, because of speech and free internet concerns, the DSA gives deference to platforms’ decisions on what moderation tools they will use, and how they will balance speech concerns against other potential harms.
The allegations against Meta in the European Commission’s pending actions are far more clear-cut and popular than questions around harmful content and political misinformation. There is little room for free speech posturing or claims of politically motivated censorship when discussing an alleged failure to provide sufficient privacy to minors and protect them from “dark pattern” style addictive advertising (Article 28 of the DSA), or possible deficiencies in Meta’s risk assessments under Article 34. The more Meta can focus public perception and legal proceedings on speech and political issues, the more support it is likely to get from the US government, individuals, and European far-right groups. To the extent that it’s about European issues at all, Zuckerberg’s speech suggest that Meta believes that it will have a better chance of avoiding fines by applying political or public pressure on the European Commission rather than trying to comply with DSA requirements.
If this is Meta’s approach, Zuckerberg has aligned Meta with Elon Musk and “X”, which has been under EU scrutiny for DSA violations since December 2023 and received a preliminary finding of a violation in July 2024 for deceptive “dark pattern” practices and lack of transparency. Rather than change their way of operating in the EU, both companies have thrown in with the US Republican Party, perhaps in the hope that the incoming US government will use political power or threats to either change EU laws or otherwise protect them from consequences. This might be a big risk for Meta, given that support of the Trump administration against the EU may not be forthcoming and a similar shift in tone by “X” resulted in a large loss of advertisers and users. However, should Zuckerberg and Musk prove even somewhat successful at avoiding regulation by making it politically untenable, or if the Republican government of the United States begins to apply domestic legal pressure on companies and oligarchs who that don’t align themselves with conservative goals, it seems likely that other large companies will follow Zuckerberg and Meta. At that point, legal questions or analysis of company actions becomes secondary, because they are no longer seeking to win in court, but to make themselves politically untouchable.
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