Elon Musk has accused the European Union (EU) of offering him a “secret deal” to “quietly censor” users of his social media platform X (formerly Twitter) and thereby avoid millions of pounds worth of fines.

The Tesla billionaire made the extraordinary claim after the European Commission — the EU’s executive body — said that X was “in breach” of the bloc’s Digital Services Act (DSA), which came into force last year, establishing a regulatory framework that critics have likened to an “incoherent, multilevel censorship regime” that will have a “chilling effect on free speech” and will ultimately cause “the death of free speech online”.

The DSA is designed to function in combination with the EU’s so-called 2022 Strengthened Code of Practice on Disinformation (‘the Code’), which requires online platforms with more than 45 million monthly active users — i.e., companies like Facebook, Instagram, LinkedIn and X — to swiftly censor forms of speech that fall under the vague and ill-defined categories of “mis-” and “disinformation”, and provide regular updates — or “transparency reports” — on all the work they are doing “to fight disinformation”, as the EU’s new “Transparency Centre” website puts it.

Thanks to the DSA, the European Commission now has at its disposal an aggressive enforcement regime, such that where companies like X fail to comply, they can be fined up to 6 per cent of their annual global revenue, investigated by the Commission, and potentially even be prevented from operating in the EU altogether. Last year, X had revenues of more than €3.4bn (£2.8bn), which means the company could soon be hit with a penalty of hundreds of millions of euros.

The formal warning against X is the first to be issued under the DSA, with the European Commission alleging that a decision taken following Musk’s $44bn takeover of the company to allow anyone to pay a set fee per month to gain a blue checkmark, would “deceive” millions of platform users.

“Since anyone can subscribe to obtain such a ‘verified’ status, it negatively affects users’ ability to make free and informed decisions about the authenticity of the accounts and the content they interact with,” the Commission said, adding: “There is evidence of motivated malicious actors abusing the ‘verified account’ to deceive users.”

The Commission’s probe into X’s blue checkmark verification system began last October as part of a wider investigation, covering alleged dissemination of “disinformation” on the platform along with the adequacy of the company’s measures to fight “misinformation”, in particular its Community Notes function, which produces crowdsourced footnotes on posts deemed misleading. The opening of these formal proceedings allowed the EU to impose interim measures on X, such as changes to its algorithms and stricter monitoring of illegal content and “disinformation”.

Margrethe Vestager, the European Commissioner for Competition, also claims that X had broken rules around advertising transparency by running an inadequate advertising library, and failing to provide online researchers with access to its data. 

“In our view,” Ms Vestagar said, “X does not comply with the Digital Services Act in key transparency areas, by using dark patterns [deceptive techniques used to manipulate user behaviour and nudge them into making decisions that benefit the manipulating agency] … by failing to provide an adequate ad repository, and by blocking access to data for researchers.”

X’s chief executive Linda Yaccarino challenged the rationale for the European Commission’s blue checkmark charge in a post on the platform, arguing that “a democratized system, allowing everyone across Europe to access verification, is better than just the privileged few being verified”.

Elon Musk also hit back, and in a direct response to Ms Vestager on X said: “The European Commission offered X an illegal secret deal: if we quietly censored speech without telling anyone, they would not fine us. The other platforms accepted that deal. X did not.”

He added: “We look forward to a very public battle in court so that the people of Europe can know the truth.”

Thierry Breton, the former French Finance Minister and now the EU’s single market commissioner, rejected the accusation.  

“Be our guest,” he said in reference to Musk’s threat of legal action. “There has never been — and will never be — any ‘secret deal’. With anyone.”

The former head of the multinational telecommunications corporation France Télécom continued: “The DSA provides X… with the possibility to offer commitments to settle a case. To be clear,” he continued, “it’s *YOUR* team who asked the Commission to explain the process for settlement and to clarify our concerns… Up to you to decide whether to offer commitments or not. That is how rule of law procedures work. See you (in court or not).”

According to Breton, X has the right to respond, but “if our view is confirmed we will impose fines and require significant changes”.

The phrase “our view” is exactly right, since under the DSA it is the European Commission that has been invested with the power to determine if something is “mis-” or “disinformation” and to decide if platforms like X are doing enough to combat it before applying penalties if a platform is found wanting.

As to what kind of speech the DSA is being used to police — and presumably the kind of speech that the Commission secretly asked Elon Musk to “quietly censor” — the Code defines “disinformation” as “false or misleading content that is spread with an intention to deceive or secure economic or political gain and which may cause public harm”.

That sounds innocent and apolitical enough. Yet the European Digital Media Observatory (EDMO), which was launched by the European Commission in June 2020 and aims to “identify disinformation, uproot its sources or dilute its impact”, appears to adopt a much broader, deeply politicised understanding of the term “misleading content”.

Consider, for instance, some of the “disinformation trends” listed in EDMO’s 2023 briefing on disinformation in Ireland. They include “nativist narratives” that “oppose migration”, and “gender and sexuality narratives” that touch on trans issues as “part of a wider ‘anti-woke’ narrative that mocks social justice campaigns and efforts to promote diversity and inclusion”. In the section on “science and environment”, posts in which “Greta Thunberg is a frequent target for abusive language and humour relating to climate change” are cited as disinformation, as are those in which “Met Éireann [the state meteorological service] weather warnings are viewed with suspicion”.

As Laurie Wastell points out for the European Conservative, what is common to these supposedly “harmful” narratives is not that they contain “disinformation” in the sense outlined in the Code (i.e., “false information intended to mislead”). Rather, they represent opposition by the public to unpopular policies favoured by elites — in this case, mass migration, transgender ideology and Net Zero eco-austerity.

That’s concerning given that EDMO sits on the Code’s “Permanent Taskforce” (stated aim: keeping the Code “future-proof and fit-for-purpose”), and that according to the most up-to-date DSA-compliant transparency reports submitted to the European Commission, Meta (which includes Facebook and Instagram), Microsoft (LinkedIn, Microsoft Bing), TikTok and Twitch have all “partnered” with EDMO.

There is in fact another company that “engaged” with EDMO “as to the best way to provide details on [its] compliance with the DSA” as recently as the second half of 2022. Its name? Twitter, now X.

It was of course during October of that same year that Elon Musk finally completed his takeover of the company, and the irrepressible Monsieur Breton — never a man to let the proprieties stifle his natural inclination towards megalomania — immediately sent in his calling card.

“I welcome Elon Musk’s statements of intent to get Twitter 2.0 ready for the DSA,” he remarked, having been a little too quick for everyone and got his foot wedged in the doorway, before warning that there was still “huge work ahead” if the company were to “pass the grade” and avoid a substantial fine or even a temporary EU-wide suspension of service. 

Specifically in relation to “mis-” and “disinformation”, he said, now stooping to shout through the letterbox at the unmistakable figure of a billionaire with the hump disappearing rapidly down a corporate entrance hall, the company would have to work with “resolve” and “significantly reinforce content moderation”. 

So was this the period during which the “illegal secret deal” to “quietly censor speech” that Musk alludes to was cooked-up? Had the poor chap barely got his feet under the table at Twitter HQ before an as yet unknown representative of the Commission sidled up to him and remarked that, “Ouah! Monsieur! Vous avez un plateforme de médias sociaux magnifique”, but “zut!”, it would be “un événement vraiment malheureux”, would it not, were anything to happen to it, “non?”

To paraphrase the Tesla billionaire himself: “We look forward to a very public battle in court so that the people of Europe can know the truth.”