New blog post on the arrest of Pavel Durov and it's implications for platform regulation

Will the arrest of Telegram’s CEO in France have implications for platform regulation, in the EU and elsewhere? 

The arrest of Pavel Durov, Telegram’s CEO and owner, has sent shockwaves through Telegram’s user base and concerns about the current state of platform regulation in France, the EU, and globally. 

On Monday, the Tribunal Judiciaire de Paris issued a press release providing additional context to the investigation, revealing charges related to the fight against cybercrime and allegations of fraud.

Telegram is a messenger which up until recently has been more popular outside of the EU in particular in Russia, Ukraine and other former Soviet Union states. While the EU has been developing its regulation of digital platforms rapidly in recent years, authoritarian Russia has tried but supposedly failed to block Telegram. There, it serves both the propagandist and disinformation purposes, as well as hosts numerous opposition media, channels and initiatives. 

Meanwhile, in the EU, the Digital Services Act came into force, which as of February 2024 applies to all platforms. As stated on the EU Commission’s website, its main goal is to prevent illegal and harmful activities online and the spread of disinformation. Another goal is the protection of fundamental rights of consumers online, including the right to free speech. 

The DSA obliges platforms, among other obligations, to report criminal offences, which, as has been reported before, are flourishing on Telegram. Thus, even though Telegram at the moment of writing this article has not been designated as a Very Large Online Platform (VLOP), it still has the obligation to report criminal offences.

However, the enforcement procedure of the Digital Services Act does not include criminal punishments or criminal investigation in case of breaching the DSA.

As Dr Mariëlle Wijermars, Assistant Professor in Internet Governance at the Faculty of Arts and Social Sciences of Maastricht University said for the PGMT lab blog: 

“The arrest of Telegram’s CEO Pavel Durov is unprecedented and may have implications for the further development of platform governance. In recent years, we’ve seen cases in which states have arrested, or threatened to arrest, platform companies’ local employees over platforms’ lack of compliance. That way, states try to pressure platforms into removing content or sharing user data with them. The tactic has been mostly associated with authoritarian states that often encounter difficulties in forcing foreign platforms to abide by their restrictive legislation. Elsewhere, the regulatory approach has relied on, for example, imposing fines. France’s arrest of the CEO of a large and globally significant app because of its lack of content moderation, and how it thereby fails to counter criminal uses of the app, therefore is quite unique. We are currently waiting for further details about the case to emerge and should be careful not to speculate. Yet, the arrest itself may already have implications, since it will inform the European and global debate on platform liability: the question whether platforms (and their owners) can be held liable for how their platforms or apps are used by others. The arrest may also have implications for EU platform regulation, in particular, since France’s decision appears to bypass the EU’s regulatory response under the recent Digital Services Act.”

In a statement from Telegram, it seemed that the company also implies that Durov was detained under the new EU platform governance regulation. It states: “Telegram abides by EU laws, including the Digital Services Act – its moderation is within industry standards and constantly improving.”

However, as legal scholars highlight, “We should not forget that if Telegram allows criminal activities on its platform, then national laws will have plenty of leeway to sanction these activities under national criminal law.” , – said João Pedro Quintais, Associate Professor at the University of Amsterdam, in a message for PGMT lab blog. 

Daphne Keller, Platform Regulation Director at the Stanford Cyber Policy Center, said yesterday on X: “The Telegram CEO arrest in France seems unsurprising, and like something that also could have happened under U.S. law. It has long been rumored (and maybe reliably reported?) that Telegram fails to remove things like unencrypted CSAM or accounts of legally designated terrorist organizations even when notified. That could make a platform liable in most legal systems, including [in the US]. CSAM, terrorist content, and drug sales are all regulated by federal criminal law. Platforms have no immunity from that law.”

To sum up, Pavel Durov was, in fact, detained under the provisions of the national member state law, not the EU’s Digital Services Act. This is an issue not about platform regulation per se but about harmonisation of member states laws and requires further legal explanation of what the EU Digital Services Act means when obliging the platforms to moderate.

Will this case affect the policies and practices of platform content moderation, including illegal content, at Telegram? The Platform Governance Archive, which is curated by PGMT lab at ZeMKI and runs with the Open Terms Archive software, has been saving and manually checking for meaningful changes in a number of platforms’ policies since the beginning of their existence. All the policies of Telegram can be downloaded for research purposes here: https://www.platformgovernancearchive.org/data/ 

Authors

Dr. Daria Dergacheva

Dr. Dennis Redeker