Telegram CEO Pavel Durov Arrested
Telegram CEO Pavel Durov Arrested
Why Charges Could Play Out Differently Under U.S. vis-a-vis EU/French Law
In a dramatic and rare turn of events, the CEO of a social media platform was arrested, not for his own conduct, but for the alleged transgressions of his company and its user base. Pavel Durov, the CEO of the messaging app Telegram, was taken into custody in August 2024 by the French police on personal charges for crimes connected to illicit activity on the app (more on that to come). The arrest sent shockwaves throughout the tech world, especially in the US, where such action is almost unthinkable. Why? Typically, authorities go after corporations rather than their executives.
What makes this case even more fascinating isn’t just the rarity of a CEO being arrested—it’s the fact that US authorities might have come to a different conclusion under US law. Should a social media CEO be legally responsible for user-generated content? Should platforms like Telegram be required to hand over data to government bodies for surveillance at the expense of privacy? Or does this veer too close to censorship? This debate hits at the core values that both the US and France have long championed—liberty, privacy, and freedom of speech, ideals inherited from the French Enlightenment. But where do we draw the line between protecting those ideals and safeguarding society?
Let’s dig in.
Roadmap:
I. What Is Telegram? II. The Arrest and Charges: EU v. US Law A. French and European Union Law: Trying to Make Online Platforms Safe Spaces B. US Law: Don’t Mess with ‘Mericans’ Free Speech C. The Takeaways for Social Media Companies Wanting to Do Business in Europe 1. EU’s Proactive and Precautionary Regulatory Approach: Durov Is Made an Example of for Refusing to Cooperate 2. French Compliance Obligations: Filing a Declaration of Cryptographic Services III. Closing Thoughts: Global Trends
I. What Is Telegram?
Telegram is a messaging app with around 950 million users worldwide. It facilitates peer-to-peer messaging and small group chats, alongside larger public “channels” of up to 200,000 users. The app built its reputation on user privacy, both through tech tools and its owners’ distaste for content moderation. However, this commitment to privacy has also attracted criminals looking for a way to communicate discreetly and securely online. That said, it’s also not the most protected social media platform as compared to its peers (more on that below).
In the past, Telegram had made headlines for platforming groups like neo-Nazis and ISIS. But despite providing a space to extremists, the app has maintained a strong anti-censorship philosophy, reflected in its lean workforce of only 30 engineers working on the infrastructure and apps—a number dwarfed by its peers’ content moderation teams alone. Just as a comparison, Meta (Facebook) has 15,000 people working just on content moderation.
II. The Arrest and Charges: EU v. US Law
Durov faces multiple charges in France, including the following:
(1) complicity in allowing Telegram users to commit crimes through the platform;
(2) refusing to cooperate with investigations into crimes that include the distribution of child sexual abuse material (CSAM), drug trafficking, and fraud; and
(3) importing a cryptographic service into France without filing the requisite declaration with the government.
Let’s break down the charges, where they come from, and how they contrast with the American approach.
A. French and European Union Law: Trying to Make Online Platforms Safe Spaces
In an effort to make the digital world safer, French regulators have ramped up their expectations for content moderation on online platforms by focusing on the culpability of the executive officers. The charges against Durov are based on a recent and untested French criminal law. Passed in 2023, Article 323-3-2 of the French Penal Code imposes up to a 5-year sentence and €150,000 fine on executives who knowingly allow the distribution of, or facilitate payments for, illegal content or services on their platforms. In cases involving organized crime, the penalty is enhanced to up to 10 years and €500,000. This law’s imposition of personal liability for tech executives is unparalleled in both America and other European countries.
While France’s ability to charge Durov individually is clearly uncommon, its strict approach to social media moderation is more common across the continent. Article 323-3-2 was passed alongside the European Commission’s 2022 Digital Services Act (DSA), which requires social media companies like Telegram to monitor user-generated content and provide data related to alleged criminal activities. The EU can fine large violators up to 6% of their gross revenue, while the fine for smaller violators depends on the country they choose to be regulated in. Telegram is currently regulated by Belgium, although the EU is investigating whether it underreported its European user base to avoid oversight. Belgium also imposes a fine of up to 6% of gross revenue for DSA violations. The DSA supplements existing French law that requires social media platforms to moderate their content. For example, under the Loi Lutte Contra la Haine sur Internet (Law Against Hate Speech on the Internet), the French government can fine global internet companies up to $1.4M per violation and up to 4% of their global revenue for not removing hate speech.
While European laws are getting stricter on content moderation, France stands out as the most aggressive enforcer due to its ability to criminally charge executives individually.
B. US Law: Don’t Mess with ‘Mericans’ Free Speech
In the United States, free speech protections are paramount, with social media platforms benefiting from strong legal shields against liability for user-generated content. Hence, the charges against Durov for complicity would be much harder to achieve in the US.
Section 230 of the Communications Decency Act gives social media companies (and by extension, officers and employees) broad immunity for their users’ posts with some limits (companies will still be liable if they violate federal criminal law, create harmful content, or violate a third party’s intellectual property rights). This framework allows for a balance between free speech and accountability. This means that, had US law applied, Section 230 would likely shield Telegram and Durov for the most part from liability for failing to take down fraudulent, drug-related, and most other illegal user-generated content. However, Telegram would clearly be responsible for the user-generated CSAM on its platform, which falls into Section 230’s carve-out for federal crimes. More on Section 230 from a prior post.
Additionally, in the US, executives usually aren’t personally responsible for their company’s actions due to a concept called the "corporate veil." Under this legal doctrine, a company is seen as a separate entity from the people who run it, protecting executives from being sued for the company’s bad actions. This allows the executives to take business risks without worrying about losing their personal assets. However, if such executives were to engage in illegal activities or serious wrongdoing like fraud, courts can sometimes "pierce the corporate veil" and hold individuals personally responsible.
Understanding these differing legal philosophies, the complicity charge is alarming for social media companies in Europe for two reasons:
It highlights Europe's trend toward holding platforms liable for user-generated content and lax moderation, unlike in the US where laws limit such liability, and
It targets Telegram's CEO, Durov, personally rather than the company, which is uncommon in both the U.S. and Europe where corporate entities are typically held accountable.
Given the US’s laissez-faire attitude, perhaps Americans are more French than the French, peut-être?
C. The Takeaways for Social Media Companies Wanting to Do Business in Europe
1. EU’s Proactive and Precautionary Regulatory Approach: Durov Is Made an Example of for Refusing to Cooperate
France's tough stance on Telegram may be influenced by the company's history of resisting legal investigations and efforts to moderate content. At the core of this refusal is Durov’s staunch opposition to government censorship. For context, the Russian-born Durov was forced to leave his home country after refusing to cooperate with the Russian government’s attempted censorship of his first social media app, Vkontakte. That experience strengthened Durov’s anti-censorship ideology and inspired him to create Telegram as a platform that lived up to his ideals of free speech, privacy, and resistance to government control.
While these ideals aren't inherently problematic, it's the degree to which Durov adheres to them that often puts him at odds with governments. Durov’s pro-free-speech philosophy trends towards absolutism. His refusal to cooperate in the French investigation is just the latest in a series of negative encounters with state authorities. Telegram regularly refused to work with governments, even when their requests involved legitimate issues such as child pornography moderation and complying with mandatory reporting laws. For instance, Germany fined Telegram in 2022 for failing to comply with its criminal reporting laws, and Brazil temporarily suspended the company in 2023 for refusing to cooperate with an investigation into neo-Nazi activity. Telegram’s behavior, informed by its anti-moderation philosophy, goes considerably further than its competitors. In contrast, major social media platform owners Meta and Google regularly comply with lawful government data requests worldwide. Tech companies should note that the EU is willing to go further than the US and isn’t afraid of making an example of individuals. That said, it’s the absolutist approach that is getting Durov and Telegram into trouble.
Ironically, if it chose to, Telegram could have cooperated with French authorities more easily than its peers. Despite its privacy-forward image, Telegram isn’t as secure as many other messaging platforms. Many large messaging services use end-to-end encryption by default, ensuring that only the participants in a conversation can read the messages—restricting even the platform or law enforcement from accessing the content. Telegram’s encryption, on the other hand, is optional; it automatically uses server-client encryption. Users must specifically opt into "secret chats" to access end-to-end encryption. These secret chats come with additional privacy features, such as self-destructing messages and anti-forwarding protections. Moreover, it seems a bit disingenuous that a company that claims to care so much about privacy doesn’t offer end-to-end encryption by default.
2. French Compliance Obligations: Filing a Declaration of Cryptographic Services
Let’s dig into the charge of importing a cryptographic service into France without the required declaration as it’s yet another charge that could not exist under US law. Durov’s encryption-related charge combines the two main themes we’ve seen so far: (i) how French law’s aggressive approach to content moderation differs from that of American, and (ii) how Telegram’s antagonistic behavior has made it the test case for France’s new approach.
France charged Durov under Article 30-I of French Law 2004-575, known as “Loi pour la Confiance dans l’Economie Numérique” (Law for Confidence in the Digital Economy). The law requires those who import certain encryption tools to make a declaration to the French cybersecurity agency, the French Network and Information Security Agency (ANSSI). Interestingly, and perhaps a result of Telegram’s especially antagonistic relationship with national authorities, France has for the first time used its declaration law to charge a social media platform or executive.
The French licensing system could not exist in America due to First Amendment protections, which recognize code as a form of free speech. This principle was established in the landmark 1996 case Bernstein v. Department of Justice, where a federal court held that the US government could not constitutionally require code to be licensed—as in France—before being published. Any restriction on free speech, like regulating code, requires a compelling government interest. Today, the US primarily applies its compelling interest through (i) export control laws and (ii) foreign investment oversight by the Committee on Foreign Investment in the United States (CFIUS), focusing on national security without broadly infringing upon free speech rights.
The declaration law’s first-ever use may signal that France has set its sights on encryption software that it sees as an impediment to enforcing its content moderation laws. Telegram’s antagonist behavior and reputation for attracting criminals make them a particularly good test case. But how far will France go? If France focuses on this charge, encryption software will become another area–alongside content moderation–where Europe’s law is increasingly diverging from those in America. Considering how much computer engineering and tech rely on encryption, understanding the compliance requirements should be a priority for any tech company aiming to do business in France.
III. Closing Thoughts: Global Trends
France’s crackdown on the darker corners of social media is part of a larger global trend. In 2022, a Brazilian court launched an aggressive moderation campaign to curb election misinformation. However, as the saying goes, "the road to hell is paved with good intentions." This experiment went viral when social media platform X (formerly Twitter) resisted the court's order to remove certain accounts for spreading alleged misinformation. In response, in September 2024, the Brazilian court blocked X nationwide, threatened heavy fines for Brazilians caught using the platform, and even threatened to arrest X’s executives in the country—a move that forced X to close its Brazilian office.
In a notable about-face, as of September 21, 2024, X has reversed its stance after weeks of defying court orders, now complying with Brazil’s Supreme Court demands, including removing accounts deemed threats to democracy in an effort to have the platform unblocked. Similarly, just this month, Durov acknowledged these issues and pledged to improve Telegram's moderation practices, committing to the removal of features being misused for illegal activities.
The reality is that holding an absolutist stance about free speech becomes increasingly difficult for social media platforms as governments around the world, like those in Brazil and France, implement stricter regulations to combat misinformation, hate speech, and threats to democracy. These platforms, while championing free expression, often find themselves at odds with national laws designed to protect the public. The clash between ideals of unrestricted speech and the practical need for moderation in the face of real-world consequences highlights the delicate balance tech companies must navigate to operate globally, often leading them to compromise on their principles to avoid legal and financial penalties.
While many free speech advocates believed Brazil's moderation efforts went too far, it does suggest that other countries are looking to the EU as a model for stricter content regulation and may begin adopting similar policies to combat misinformation and protect democratic institutions. Moreover, France’s actions are part of a broader European trend, where the European Council has recently passed a series of sweeping tech regulations (including the Digital Services Act discussed earlier). This trend is significant enough to have earned a nickname: "the Brussels effect." The process is simple: Europe sets strict global standards, and companies comply worldwide because it’s cheaper than customizing regulations for each country.
To conclude, Durov's arrest raises the question of whether France’s actions could signal the start of a new "Brussels effect," where social media platforms are forced to adopt more aggressive moderation globally. Given that companies often design their policies to meet Europe's stringent standards—since it's cheaper than customizing regulations for each market—platforms may increasingly have to adhere to the European standard for content moderation or face the risk of personal liability for their executives. Time will tell.
In the meantime, if you're a CEO of a social media company, it might be wise to reconsider any European vacation plans. Instead of the French Riviera, there’s always the Redneck Riviera?!
[Special thanks to Anahita Arora, Sofia DeSimone, Bryan Edelman and Jane Perov for their thoughtful feedback.]
Resources:
French Preliminary Charges, https://www.tribunal-de-paris.justice.fr/sites/default/files/2024-08/2024-08-26%20-%20CP%20TELEGRAM%20.pdf
Adam Satariano & Cecilia Kang, Can Tech Executives Be Held Responsible for What Happens on Their Platforms?, N.Y. Times (Aug. 28, 2024), https://www.nytimes.com/2024/08/28/technology/durov-telegram-liability-platforms.html.
Barbara Ortutay, What is Telegram and Why Was Its CEO Arrested in Paris?, AP News (Aug. 28, 2024, 4:36 PM), https://apnews.com/article/telegram-pavel-durov-arrest-2c8015c102cce23c23d55c6ca82641c5.
Aurelian Breeden & Adam Satariano, Telegram Founder Charged With Wide Range of Crimes in France, N.Y. Times (Aug. 28, 2024), https://www.nytimes.com/2024/08/28/business/telegram-ceo-pavel-durov-charged.html.
Mike Isaac & Sheera Frenkel, Telegram Founder’s Indictment Thrusts Encryption Into the Spotlight, N.Y. Times (Aug. 29, 2024), https://www.nytimes.com/2024/08/29/technology/telegram-encryption-pavel-durov.html.
Miranda Nazzaro, Telegram CEO’s Arrest: What It Could Mean for US Companies, The Hill (Aug. 29, 2024, 6:00 AM), https://thehill.com/policy/technology/4852352-telegram-ceo-detention-free-speech/
Ash Johnson & Daniel Castro, Overview of Section 230: What It Is, Why It Was Created, and What It Has Achieved, Info. Tech. & Innovation Found. (Feb. 22, 2021), https://itif.org/publications/2021/02/22/overview-section-230-what-it-why-it-was-created-and-what-it-has-achieved/.
David Greene & Eva Galperin, The French Detention: Why We’re Watching the Telegram Situation Closely, EFF (Aug. 30, 2024), https://www.eff.org/deeplinks/2024/08/french-detention-why-were-watching-telegram-situation-closely.
Ellen Ioanes, Why Telegram’s CEO Was Detained in France, VOX (Aug. 28, 2024, 4:45 PM), https://www.vox.com/technology/368896/telegram-pavel-durov-france-cyber-crimes-terrorism-content-moderation-macron-elon-musk.
Pieter Haeck, As France Cracks Down on Telegram, EU Sits on Sidelines, Politico (Aug. 29, 2024, 6:00 AM), https://www.politico.eu/article/telegram-crackdown-eu-pavel-durov-paris-online-dsa/.
Joe Tidy, Telegram Repeatedly Refuses to Join Child Protection Schemes, BBC, https://www.bbc.com/news/articles/cy54905nv0go.
Yohan Yun, How Big Tech Handles Privacy and Governments’ Data Demands, CoinTelegraph (Aug.29, 2024), https://cointelegraph.com/news/big-tech-privacy-government-data-regulation.
Foo Yun Chee & Supantha Mukherjee, Musk’s X Has a Fraction of Rivals’ Content Moderators, EU Says, Reuters (Nov. 10, 2023, 3:48 PM), https://www.reuters.com/technology/musks-x-has-fraction-rivals-content-moderators-eu-says-2023-11-10/#:~:text=According%20to%20reports%20the%20companies,speaking%20on%20condition%20of%20anonymity.
Lorenzo Franceschi-Bicchierai, Telegram Says It Has ‘About 30 Engineers’; Security Experts Say That’s a Red Flag, TechCrunch (June 24, 2024, 1:04 PM), https://techcrunch.com/2024/06/24/experts-say-telegrams-30-engineers-team-is-a-security-red-flag/?guccounter=2.
Digital Services Act, Eur. Council: Council of the Eur. Union (July 5, 2024), https://www.consilium.europa.eu/en/policies/digital-services-act/#consequences.
Digital Services Act Tracker, DLA Piper, https://www.dlapiper.com/en/insights/publications/2024/02/digital-services-act-tracker (last visited Sept. 15, 2024).
Jack Nicas & Kate Conger, How Brazil’s Experiment Fighting Fake News Led to a Ban on X, N.Y. Times (Aug. 31, 2024), https://www.nytimes.com/2024/08/31/world/americas/brazil-x-ban-free-speech.html?smid=nytcore-ios-share&referringSource=articleShare&sgrp=c-cb.
Antoaneta Roussi, Clothilde Goujard & Océane Herrero, France Uses Arcane Cyber Law to Charge Telegram CEO, Politico (Sept. 5, 2024, 8:00 AM), https://www.politico.eu/article/telegram-ceo-pavel-durov-arrest-france-charges-cyber-laws/.
Yohan Yun, How Big Tech Handles Privacy and Governments’ Data Demands, CoinTelegraph (Aug. 29, 2024), https://cointelegraph.com/news/big-tech-privacy-government-data-regulation.
Gabriel Stargardter, France Uses Tough, Untested Cybercrime Law to Target Telegram’s Durov, Reuters (Sept. 17,2024, 4:12 PM), https://www.reuters.com/world/europe/france-uses-tough-untested-cybercrime-law-target-telegrams-durov-2024-09-17.
Liberty, Equality, Fraternity, France Diplomacy, https://www.diplomatie.gouv.fr/en/coming-to-france/france-facts/symbols-of-the-republic/article/liberty-equality-fraternity (last visited Sept. 20, 2024).
Mark Trevelyan & Martin Coulter, Durov Says Telegram Will Tackle Criticism of How It Moderates Content, Reuters (Sept. 6, 2024, 10:20 AM), https://www.reuters.com/technology/durov-says-telegram-will-take-new-approach-towards-moderation-2024-09-06/.
Bernstein v. U.S. Dep’t of State, 945 F. Supp. 1257 (N.D. Cal. 1996), reprinted in https://law.justia.com/cases/federal/district-courts/FSupp/945/1279/1457799/.
Lora Kolodny, X Blocked in Brazil After Supreme Court Panel Upholds Suspension Order, CNBC (Sept. 2, 2024, 2:02 PM), https://cnbc.com/2024/09/02/x-blocked-in-brazil-after-court-majority-upholds-suspension-order.html.
Telegram Logos and App Screenshots, Telegram https://telegram.org/tour/screenshots (last visited Sept. 20, 2024).
Margaret Fogarty, Artist Revives Singing Telegram with a Modern Twist, Western Union (May 13, 2020), https://www.westernunion.com/blog/en/artist-revives-singing-telegram-with-a-modern-twist/.
Justino Mora, Demystifying the Signal Protocl for End-to-End Encryption (E2EE), Medium (Aug. 17, 2017), https://medium.com/@justinomora/demystifying-the-signal-protocol-for-end-to-end-encryption-e2ee-ad6a567e6cb4.
Telegram FAQ, Telegram, https://telegram.org/faq?setln=en (last visited Sept. 22, 2024).
MTProto Mobile Protocol, Telegram, https://core.telegram.org/mtproto (last visited Sept. 22, 2024).
Susan Buckner & Aviana Cooper, Piercing the Corporate Veil, FindLaw (May 23, 2024), https://www.findlaw.com/smallbusiness/liability-and-insurance/officer-and-director-liability-piercing-the-corporate-veil.html.
Jack Nicas & Ana Ionova, Elon Musk’s X Backs Down in Brazil, N.Y. Times (Sept. 21, 2024),https://www.nytimes.com/2024/09/21/world/americas/elon-musk-x-brazil.html.
AI Images:
Image of French Propaganda Poster generated by Dall-E, Firefly, and Pixlr
Image of Napoleon generated by Dall-E
Image of James Madison generated by Dall-E
Image of Colosseum v. Wrigley Field generated by Dall-E, Firefly, and Pixlr
Image of Voltaire Movie Poster generated by Dall-E, Firefly, and Pixlr
Image of Singing Telegram generated by Dall-E, Firefly, and Pixlr
Image of Poker Match generated by Dall-E, DreamStudio, Firefly, and Pixlr
Image of Redneck Riviera generated by Dall-E, Firefly, and Pixlr
Disclaimer: This post is for general information purposes only. It does not constitute legal advice. This post reflects the current opinions of the author(s). The opinions reflected herein are subject to change without being updated.
 | A guest post by
|