Meta's end of fact-checking in the United States and its obligations under the DSA

On Tuesday 7 January Mark Zuckerberg announced in a video that Meta would end its third-party fact-checking programme and replace it with a Community Notes system modelled on X, starting in the United States. He said that the fact-checkers had been too politically biased, that Meta would move its content moderation teams out of California and base its US content review in Texas, and that the recent elections felt like a cultural tipping point towards speech[1]. The written announcement by Joel Kaplan, Meta's new Chief Global Affairs Officer, confirms the sequence. The changes start in the United States. Meta will stop demoting fact-checked content, will lift restrictions on topics such as immigration and gender, and will act on lower-severity violations mainly after user reports[2].

Two sentences in the video concern us directly. Zuckerberg said that Europe has "an ever-increasing number of laws, institutionalizing censorship" and that Meta would work with President Trump to push back on governments around the world[1]. Donald Trump takes office on 20 January. Asked whether Zuckerberg was responding to his threats, he answered "Probably"[3]. We read this as the opening of a dispute between the largest social network and the Union's rulebook, and we think the Union should be clear about what that rulebook does and does not require.

What the programme was and where it still runs

Meta created the third-party fact-checking programme in 2016. By this month it had more than 90 partner organisations working in more than 60 languages[4]. The International Fact-Checking Network's director, Angie Drobnic Holan, expects fewer fact-checking reports and fewer fact-checkers as a result of the decision[3]. The European Fact-Checking Standards Network, which gathers more than 50 European organisations, has defended the programme and says it has run successfully for eight years[5].

For now the programme continues in Europe. Ireland's regulator, Coimisiún na Meán, which supervises Meta's European establishment under the Digital Services Act, said that the change applies only to the United States and not to users within the Union[6]. On 8 January the Commission's spokesperson Paula Pinho said: "We absolutely refute any claims of censorship on our side"[6]. A Commission spokesperson added that a very large platform must conduct a risk assessment and send it to the Commission before it removes such policies in the Union[7]. On 10 January the spokesperson Thomas Regnier said that the Commission does not prescribe which content moderation policies very large platforms adopt, but that whatever model a platform chooses must be effective. The Commission will meet the platforms and the German regulator on 24 January, before the German federal election[8].

What the Digital Services Act actually requires

The Digital Services Act is Regulation (EU) 2022/2065. The Commission designated Facebook and Instagram as very large online platforms on 25 April 2023[9]. That designation triggers the obligations in Articles 34 and 35, and these are the provisions that matter in the present dispute.

Article 34(1) requires providers of very large online platforms to "diligently identify, analyse and assess any systemic risks in the Union" stemming from the design or use of their services. The listed risks include negative effects on fundamental rights, among them freedom of expression, and any actual or foreseeable negative effects on civic discourse and electoral processes. The assessment must be repeated at least once a year, and in any event before the provider deploys functionalities likely to have a critical impact on the risks identified. Article 34(2) requires the provider to consider how its content moderation systems and the enforcement of its terms and conditions influence those risks[10]. Article 35(1) then requires "reasonable, proportionate and effective mitigation measures". The list of possible measures is open. It includes adapting content moderation processes, cooperation with trusted flaggers and cooperation with other providers through codes of conduct under Article 45[11]. Under Article 74(1) the Commission may fine a provider up to 6 per cent of its total worldwide annual turnover for an infringement[12].

The text therefore does not say what Zuckerberg says it says. Nothing in the Regulation obliges Meta to employ fact-checkers, and nothing in it requires Meta to remove lawful content. The Regulation obliges Meta to know the risks its service creates for elections and civic discourse in the Union, to write that knowledge down, and to show the Commission measures that work. Fact-checking is one such measure. Meta chose it, and Meta also chose to join the 2022 Code of Practice on Disinformation, in which signatories committed to extend fact-checking coverage across all Member States and languages and to work towards fair financial contributions for fact-checkers[13]. If Meta now decides that fact-checking is the wrong measure for Europe, the Regulation gives it the right to say so and the duty to show what replaces it.

The Commission already has an open file. On 30 April 2024 it opened formal proceedings against Facebook and Instagram over deceptive advertising and political content and over the withdrawal of CrowdTangle without an adequate replacement for monitoring civic discourse before the European elections[14]. Those proceedings have produced no decision in more than eight months. That is the weakness Zuckerberg is testing.

What we ask

We ask the Commission to write to Meta now and to ask one question in public: does Meta intend to apply the 7 January changes in the Union, and if so, when will it submit the risk assessment that Article 34(1) requires before deploying them?

We ask the Commission to bring the proceedings of 30 April 2024 to a preliminary finding before the German election on 23 February. The Regulation's credibility depends on a first decision, and this is the file that is ready.

We ask the Commission to answer Zuckerberg's censorship claim with the text. It should publish a short note that sets out what Articles 34 and 35 require and what they do not, so that European users and American officials can read the same page.

We ask the Member States to fund independent European fact-checkers through the European Digital Media Observatory, so that their survival no longer depends on Meta's goodwill. A measure that depends on a single company's budget can be withdrawn in a single video, and this month proved it.