How the White House is Gaslighting the World About Europe’s Digital Laws

On February 21, the White House posted a ‘fact sheet’ addressing its official position in defending American companies from foreign regulation, which it deems “overseas extortion.” More specifically, the incumbent United States administration is critical of regulation from the European Union or the United Kingdom that it says would undermine free speech and would have US businesses “hand over their intellectual property.” The EU’s Digital Services Act (DSA) is one of the culprits which could force the hand of the administration to take retaliatory measures. These statements echo US Vice President JD Vance’s speech at the Munich Security Conference. In this context, Vance said, “In Washington, there is a new sheriff in town, and under Donald Trump’s leadership, we may disagree with your views, but we will fight to defend your right to offer it in the public square agree or disagree,” and that “Dismissing people, dismissing their concerns … shutting down media, shutting down elections … protects nothing. It is the most surefire way to destroy democracy … If you’re running in fear of your own voters, there is nothing America can do for you.”

This stance backslides decades of regulatory developments in cyberspace. The dawn of the Internet saw the rise of US tech companies legally transplanting US law to other jurisdictions through their private governance (e.g. Facebook’s 2006 Terms of Service). The proliferation of US laws and values has been extensively criticized. As an illustration, according to James Grimmelmann, “[...] the American ideal of free speech as an inalienable right [...] resonated strongly in the age of the Internet. But it is also a profoundly American ideal; other democracies balance free speech against other goals in very different ways.”

Since the early days of Internet companies, things have evolved. Nation states and supranational organizations decided they would not let cyberspace be a legal Wild West or be dominated by laws other than their own. In the EU, that shift is encapsulated in the mantra of the DSA, according to which what is illegal offline should be illegal online.

Claims that the EU is shutting down elections and media, and that there is no place in the EU for freedom of expression, are not merely misguided interpretations of EU law and policy, but straight disinformation. As Mark Scott also argues, the EU has not been particularly effective at countering this. Some of these concerns are most likely based on various interpretations of the DSA that come across as speculative when compared to the vast body of policy (e.g. travaux preparatoires) and academic literature (in law and beyond) emerging around this regulatory instrument.

Politicians such as former EU commissioner Thierry Breton have tried to weigh in and correct the record: “EU/DSA has never canceled elections—despite far-right extremists and @ElonMusk continuously pushing this lie. The DSA doesn’t regulate content; it ensures #transparency so no platform — being Chinese, Singaporean, American or European — can manipulate algorithms.” But neither tweets nor diplomatic meetings initiated by new commissioners will do any good if the US’s goal is to exert political pressure and stop the EU from applying its current regulation to US companies and perhaps influence the law-making ambitions of the new Commission.

Tech CEOs complaining about EU regulation

US companies — particularly social media platforms — also fanned the flames of the discourse against EU legal compliance by seemingly championing a return to freer speech. Under Elon Musk, X has relaxed content moderation efforts, leading to a considerable decline in its sanctioning actions. Musk also pivoted on his earlier commitments to abide by the law of the land when expanding his plans for X, going so far as to insult Breton through memes.

More recently, Meta announced that Instagram and Facebook would be replacing fact-checkers with Community Notes, and Google communicated to the European Commission that it would not be doing any fact-checking integration to comply with the EU Code of Disinformation. Some context for the regulatory pushback was provided by Mark Zuckerberg in a recent appearance on Joe Rogan’s podcast, where he equated compliance with EU regulation as “screwing with American companies”: “[...] The EU... I pulled these numbers…the EU has fined tech companies more than $30 billion over the last, I think it was 10 or 20 years. [...] This is sort of an EU-wide policy of how they wanna deal with American tech, it’s almost like a tariff, and I think the US government gets to decide how they are going to deal with that. Cause if some other country was screwing with another industry that we cared about, the US government would find a way to put pressure on them.”

This framing of what regulation aims to achieve in the EU is baffling. Unlike the US, which showed us in the TikTok ban (“Protecting Americans from Foreign Adversary Controlled Applications Act”) that it does not shy away from targeting individual non-US companies, the EU does not regulate like that. Legally, EU rules like those in the DSA apply to all companies offering services in the EU, irrespective of where they are established (Art. 2(1) DSA). Even for companies with most obligations under the DSA (Very Large Online Platforms and Very Large Search Engines), half of the list of VLOPs and VLOSEs designated by the Commission reflects non-US companies (e.g. EU, Canada, China, and Singapore). Moreover, from a substantive perspective, even if this regulation actually targeted US companies alone, it is an incremental change to a regime that is, ironically, US-inspired. The DSA actually takes over the same regime for platform liability that was adopted in 2000 under its predecessor instrument, the E-Commerce Directive, which in turn, was inspired by US law (Section 230, CDA 1996). Despite the overwhelming evidence pointing to the immeasurable harm digital platforms can cause to consumers and citizens (see, for instance, the recent wave of gore, violence, and dead bodies content on Instagram), the DSA is, at best, a shy reform, as its only contributions to accountability come from transparency and due diligence obligations.

There are serious questions about interpretation and legal qualification that the Commission itself is internally vulnerable to before the Court of Justice of the European Union (CJEU). Of course, apart from platform liability, there are also tax, competition, and data protection concerns. However, the argument that such rules directly target US companies because of their size or nature should be balanced with the reality that with these rules being equally applicable to EU companies, which are generally much smaller, regulatory burdens affect them disproportionately. After all, compliance costs are said to contribute to the reason why the EU is less successful than the US in facilitating the growth of its tech companies, and large companies generally benefit from a more complicated regulatory environment vis a vis smaller firms.

What social media companies should actually fear: consumer protection

Returning to the DSA, the fact that the Commission has opened investigations into X and Meta has raised fears around DSA enforcement. This seems to be generally weaponized by the White House and its supporters, who consider enforcement powers leading to the potential suspension of platforms as the epitome of tyranny, and not as a predictable administrative sanction for not complying with the laws of the (cyber)land. Then again, X has been having legal trouble in other jurisdictions, such as in Brazil, where the platform was temporarily suspended until it actually complied with a court order. Similarly, Meta has been hit with one lawsuit after another in the US, not only from a coalition of 42 Attorneys General, but also from hundreds of schools, claiming product features that encourage addiction in minors.

These illustrations mean two things. On the one hand, the plight of social media companies is by far not limited to the EU, and on the other hand, particularly when it comes to the lawsuits against Meta, the gloves are finally coming off: social media platforms are not merely these touted public squares where you can say what you want (according to American values), but they are products. The overrepresentation and overprotection of social media platforms as speech intermediaries have harmed, in the long run, the implications that their commercial nature has for consumers. Particularly in the age — of what I call the New Social Media— where platforms want to converge sociality with entertainment and shopping, consumer protection becomes pivotal in qualifying these emerging business models. The growing creator economy and the social commerce projections we are already witnessing in this space bring new questions about digital services, the sale of goods, product safety, etc. In this context, social media platforms can no longer hide from their actual liability. While the DSA does not regulate content, the rich history of approximately 50 years of positive EU consumer law does.

What is more, consumer protection is enshrined in the Charter of Fundamental Rights of the EU (Article 38), and consumer rights are inalienable, meaning they cannot be contracted away.

The Commission just completed its Digital Fairness Fitness Check to further modernize the consumer protection framework, focused on dark patterns and influencer marketing, among others. A resulting Digital Fairness Act, tasked to Commissioner Michael McGrath, is expected by mid-2026. This reinforced consumer framework should give social media platforms pause as they challenge their entire setup. Instagram as a speech intermediary is one thing, and Instagram as a new Amazon triggers a totally different liability framework under EU law.

Historically, big US tech companies have tried to resist the much more stringent EU consumer rules, as we saw a decade ago with Apple’s product warranty. But for Apple, resistance was a matter of transaction costs and policy uniformity at the global level, and not a problem of whether it owes consumer protections in the first place. For social media companies, the turning point that they are no longer mere hosts of expression, but providers of goods and services is rapidly approaching (e.g. the lawsuit against X in the Netherlands based in part on the DSA and on the Unfair Contract Terms Directive), despite the skewed picture painted by CEOs going on podcasts. Platforms such as Meta and X better start assembling their consumer law compliance, which is arguably much more of a puzzle than the DSA’s obligations.

Currently, the form of administrative enforcement for consumer obligations in the future third iteration of the Consumer Protection Cooperation Regulation is purely speculative. Considering enforcement harmonization trends around the digital acquis, it would not be surprising to see the Commission gain even stronger enforcement powers than it currently has. However, the current geopolitical landscape might affect these expectations. National consumer protection authorities already enjoy a broad scope of powers that even allow them to undertake dawn raids on the premises of companies under investigation, and it is only a matter of time before they will start using them against social media companies in particular.

Conclusion

Instead of publicly wailing about how they are being targeted by an envious and authoritarian EU, CEOs like Musk and Zuckerberg should instead become familiar with the reality that after decades of unchecked power for big tech, states are finally catching up and, as Thibault Schrepel puts it, fighting fire with fire — or at least that would be the ambition. As for the White House, the retaliatory ping-pong affected its relationship with many of its traditional allies, making it very difficult to distinguish bluff from real action. It is concerning that the US is now expressing its domination plans clearly and loudly, but US companies are still interested in the EU as a market. If they want to cater to EU consumers, that needs to happen according to European law.

Investigations are here to stay, and that is a state of affairs beyond the DSA. Whether the implications that such approaches might splinter the Internet as we know it, to what extent it will lead to a compliance industry, or whether all this will prove good or bad — remains to be seen. But the view that Commission fines are tariffs that the EU is indirectly imposing on US big tech to make money is so detached from any reasonable understanding of how EU regulation works that it’s actually meme-worthy.