Pavel Durov Is Under Formal Investigation – The Start of a New Era for Internet Regulation

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The digital era is marked by limitless online communication, but at the same time, it raises concerns about our freedom and digital rights.

After Pavel Durov – the founder of the messaging app Telegram – was arrested in France, the issue is escalating and coming to a pivotal moment.

The case of Pavel Durov – a turning point

Legal claims related to Telegram’s confidentiality have raised critical questions about the limits of platforms’ liability and the future of internet regulation.

On Monday, August 26, 2024, French president Emmanuel Macron hurried to dismiss accusations from Telegram supporters that the arrest was an example of government censorship.

In a statement posted on X, Macron said,

“The arrest of the president of Telegram on French soil took place as part of an ongoing judicial investigation. It is in no way a political decision. It is up to the judges to rule on the matter.

“France is deeply committed to freedom of expression and communication, to innovation and to the spirit of entrepreneurship. It will remain so.”

Why this case is so unique that it can influence the future of our digital rights

Is it the first case in history when the platform is liable for its users? No, it is not.

Internet regulation legislation in many countries is designed to promote immunity from claims against platforms for UGC (user-generated content).

However, there are some exceptions to this general rule.

• Intellectual property violations – Platforms can be held liable if they fail to remove infringing content after receiving proper notification.
• Federal criminal conduct – Platforms are not shielded from liability for hosting content related to criminal activities, such as child exploitation or terrorism.
• Sex trafficking – Under laws like FOSTA-SESTA in the US, platforms can be held accountable for facilitating sex trafficking.
• In Europe, platforms can be held liable if they fail to take appropriate action to remove illegal content after receiving proper notice.

These exceptions address severe legal and ethical concerns, ensuring that platforms do not become safe havens for illicit activities.

Is it the first precedent in the history of platform founders’ personal liability? Again, absolutely not.

Here are the previous cases.

Political and social liability – Mark Zuckerberg and congressional hearings

A recent trend in the United States is to call CEOs of big digital companies to appear before Congress, voicing concerns about content moderation and user safety.

For example, Mark Zuckerberg, CEO of Meta, was asked to appear before the United States Senate Judiciary Committee on matters of sexually explicit photos of children and other dubious content on Meta’s platforms.

Lawmakers criticized the company’s prioritization of engagement and profit over user safety, questioning its commitment to resolving these concerns.

During the hearing, Zuckerberg apologized to parents whose children had been affected by content on platforms such as Facebook.

Criminal liability

When it comes to criminal prosecution, Silk Road is a great case in point. Its founder Ross Ulbricht was proven guilty of intentionally creating a project for illegal activities – selling of drugs and other illicit goods using Tor browser and BTC transactions for complete anonymity.

In 2015, Ross Ulbricht was charged with money laundering, drug trafficking and the creation of a criminal enterprise. He got a life sentence.

3. So, why is Pavel Durov’s case so particular?

Durov’s situation is different from the abovementioned cases because, unlike Mark Zuckerberg, Durov can face personal criminal liability – not just political or social.

Unlike Ross Ulbricht and Silk Road, Telegram was not explicitly designed for illegal transactions. Today, Telegram can be found liable for its strong confidentiality features, which criminals misuse.

The closest to Durov’s example is the arrest of Diego Dzodan, Facebook’s vice president for Latin America.

Diego Dzodan was arrested in Brazil in 2016 for Facebook’s failure to comply with judicial orders related to a drug trafficking investigation.

Brazilian courts demanded access to WhatsApp messages several times, but Facebook claimed it was impossible because of encryption.

The arrest of Dzodan was later considered ‘extreme’ – a good example of how ambiguous personal responsibility for online actions is.

Dzodan spent less than one day in custody before being freed by order of a higher court, which highlights the controversy of such arrests.

What are the charges

Paris prosecutor Laure Beccuau stated that the arrest was part of an investigation opened on July 8, against a ‘person unnamed’ on charges including complicity in distributing child pornography, drug trafficking, money laundering and refusal to cooperate with law enforcement.

After court hearings on Wednesday, August 28, French authorities handed Pavel Durov preliminary charges and prohibited him from leaving France while the investigation continued.

The charges contained in the communiqué from Tribunal Judiciaire de Paris include the following.

• Cybercrime and platform misuse
  • Complicity in administering an online platform for illicit transactions
  • Refusal to cooperate with authorities on authorized interceptions
  • Complicity in offering tools for unauthorized access to automated data systems
• Child protection violations
  • Complicity in possessing and distributing child pornographic images
• Drug-related offenses
  • Complicity in drug possession, transport and distribution
• Financial crimes
  • Complicity in organized fraud
• Money laundering of proceeds from organized crime
  • Criminal association
  • Participation in a criminal organization
• Cryptology violations
  • Providing undeclared cryptology services for confidentiality
  • Offering and importing cryptology tools without proper declaration

A mental experiment

Now that you have read the charges in the Telegram case, imagine any large city’s streets.

They, too, are an infrastructure that can be used legally or for illegal activities, such as drug dealing and distributing pornographic materials.

Would we hold the mayor of such a city personally responsible for every instance of drug sales? Should we hold Pavel Durov accountable for the illegal use of the digital infrastructure he created?

What if Durov or Telegram is found to be liable

Pavel Durov’s allegations can be a sign of a major change in the way governments hold digital businesses accountable.

This may establish a precedent when founders hold personal responsibility for providing the technology that could be misused, not to mention the absence of content moderation.

As a result, the case may lead to the following.

Increased censorship and self-regulation

Platforms inevitably become more proactive in moderating content to avoid legal repercussions, potentially leading to increased censorship and a chilling effect on free expression.

We will face a new era of censorship, conducted not only by governments but also widely conducted by digital platforms.

Impact on privacy and encryption

If refusal to comply with law enforcement requests becomes a standard legal expectation, it could alter how platforms handle user privacy and encryption, possibly requiring mechanisms to provide user data access to authorities.

Global fragmentation of the internet

Different jurisdictions will adopt varying regulations regarding digital platforms and the liability of their owners.

This will lead to the fragmentation of the internet, with platforms in each country adapting to specific legal requirements – and, consequently, moderating information agendas and the overall worldview in different ways.

A deeper look – the clash between digital platforms and governments

The charges against Pavel Durov can be considered the latest episode in the ongoing conflict between digital platforms and governments worldwide.

As digital platforms have grown in power and influence, they have increasingly come into conflict with state authorities over issues like censorship, data privacy and access to information.

Facebook and Australia

In 2021, Facebook temporarily blocked news content in Australia in response to a proposed law that would require tech giants to pay news publishers for content.

This drastic move by Facebook highlighted the power struggle between tech companies and governments over content monetization and control.

The standoff resulted in negotiations and amendments to the law, demonstrating how tech platforms can influence national policies.

Twitter and India

Regarding content control and freedom of speech, Twitter and the Indian government have been at odds for some time.

In 2021, Indian authorities demanded to remove some Twitter accounts and posts connected to farmers’ demonstrations.

Twitter refused and filed a case in the Karnataka High Court in 2022 in response to the requests made by the government.

The court, however, denied their plea and fined the company five million rupees or around $61,000.

This case clearly shows how platforms try to hover between freedom of users’ expression and obedience to local laws.

These examples demonstrate intricate relationships between internet platforms and governments.

Digital projects have become so powerful that they may now interfere in areas previously thought to be controlled by the state, such as censorship, national security and data privacy for citizens.

For this reason, the majority of IT entrepreneurs consider Pavel Durov’s case to be a serious violation of digital freedom.

Vitalik Buterin and Elon Musk have expressed worries about how this arrest would restrict people’s ability to communicate freely.

Founders and managers of digital companies are getting concerned about being held accountable for each and every post, ad or illegal content that appears on their platforms.

The inquiry into Telegram is seen by the authorities as a struggle for power – governments strive to keep their censorship monopoly, believing that only they can define what are ‘national security interests.’

Conclusion

Any outcome of Pavel Durov’s story will lay the path for the future of the internet and digital liberties.

Either state will have more control over digital platforms and be able to set acceptable privacy boundaries and the extent of cooperation with law enforcement – or private companies will continue to argue that they are not liable for the content published on their platforms.

What role does society play in this argument? Public trust is fragile at the moment.

On the one hand, many believe that governments are over-controlling the internet in order to promote their political agendas – which makes people more skeptical of authorities’ activities.

On the other hand, false information and data breaches make users lose faith in digital systems.

Hence, Pavel Durov’s case represents more than simply a turning point for the internet – it also highlights a public trust issue that will require resolution in the coming years.

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Catherine Smirnova is the partner and attorney-at-law at Digital and Analogue Partners, a company offering cutting-edge strategic, economic and legal guidance to digital firms. Catherine specializes in digital markets, focusing on digital platforms and ecosystems, and is recognized as one of the leading experts in digital market competition.

 

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