Brian Downing (University of Mississippi – School of Law) has posted Bargaining with the Brussels Effect, 29 Vand. J. Ent. & Tech. L. ___ (2026) on SSRN. Here is the abstract:
The U.S. lightly regulates digital platforms’ policies. Policies include what personal data appears in search results or which comments show up on social networks. U.S. scholars, judges, and some government officials make arguments to justify this hands-off approach in the vein of: “whatever you think of these technology companies, it is better that private actors manage their services rather than the government.”
This argument overlooks that “the government” shaping digital platforms is not the United States but the European Union. The E.U. is actively regulating the four major digital regulatory categories: privacy, content moderation, antitrust, and AI. Digital platforms adopt these Big 4 E.U. regulatory standards globally to simplify compliance, as the Brussels Effect posits.
In short, the U.S. defers to the platforms, and the platforms defer to the E.U. Thus, the U.S.’s hands-off approach is not fostering innovation or protecting corporate speech; it is creating a gap filled by E.U. regulation.
The E.U. vision has commendable aspects, like better due process rights for users facing unjust content removals. However, it also tends to place less value on speech and security than most U.S. users prefer. With strict E.U. compliance rules and hefty fines, U.S. digital platforms will not prioritize their domestic users’ preferences when facing E.U. regulatory risks.
This Article argues that U.S. regulation, perhaps counterintuitively, is necessary to hash out the different U.S. and E.U. views of digital regulation. Incorporating concepts from international trade and regulatory harmonization, the Article argues that proactive U.S. regulation will better align tech policies with U.S. user preferences, particularly speech and security values. This approach is necessary as the E.U. considers a regulatory “simplification.” Only by bargaining with the Brussels Effect will the U.S. force digital platforms to reflect the best of both the E.U. and U.S. visions for the internet’s future, instead of defaulting to E.U. standards.
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