Digital issues have been keeping the law busy.
This week, Elon Musk was roundly rebuked by a Californian judge after the avowed free speech champion tried to stifle free speech. Specifically, the judge dismissed Musk’s lawsuit against the Center for Countering Digital Hate, a not-for-profit that’s been diligently documenting the rise of racist, antisemitic and extremist content since Musk took over X. The judge called the lawsuit ‘vapid’, dismissing it under California’s anti-SLAPP (Strategic Lawsuit Against Public Participation) law, which targets nuisance lawsuits that seek to limit free speech.
‘This case is about punishing the defendants for their speech,’ wrote the judge, Charles Breyer.
Free speech is also firmly on the agenda of the US Supreme Court, with five social media cases currently or recently before the court. Earlier this month, the court held unanimously that public officials can block someone from their social media feed if posting doesn’t form part of their official duties. Another case was initiated in 2022, when two US states brought a lawsuit against the Biden administration, arguing that it violated the First Amendment by ‘coercing’ or ‘significantly encouraging’ social media companies to block content related to COVID-19, vaccines, and the legitimacy of the 2020 presidential election. Throughout it all, the creaking you hear is the sound of the First Amendment being bent into interesting new shapes to accommodate our digital interactions.
Some of the law’s biggest moves, however, are coming from competition regulators. Last week, the US government filed a momentous antitrust lawsuit against Apple, accusing the Silicon Valley behemoth of having a ‘broad, sustained and illegal’ monopoly over the smartphone market. European regulators are thinking along similar lines, with Apple this month hit with a €1.8 billion penalty from the European Union following an investigation into whether it shut out music-streaming rivals, including Spotify, from its platforms.
Meanwhile, the EU has announced it is investigating Apple, Alphabet (Google) and Meta for potential anti-competitive breaches of the Digital Markets Act, which came into force on March 7. As EU Commissioner Thierry Breton posted on X on Monday, ‘The #DMA has been in place for 18 days and we’ve witnessed more change from Big Tech than in the past 10 years.’ Globally, it seems, sheriffs’ trigger fingers are getting itchy.
Sacha Molitorisz, Senior lecturer - UTS Law