A dangerous precedent? The arrest of Telegram CEO Pavel Durov sparks the speech war | Technology

In the battle for control of the Internet, the potential significance of the arrest of Telegram founder and CEO Pavel Durov can hardly be overestimated.

At the heart of the French authorities' proceedings against the Russian-born billionaire is a crucial question: are online platforms legally responsible for the opinions expressed by their users?

Prosecutors say Durov was detained as part of an investigation into 12 criminal charges, most of which relate to “complicity” in serious crimes ranging from drug trafficking to distributing child sexual abuse material.

While governments around the world have been trying for years to tighten controls on online expression – cracking down on everything from racial hatred and cyberbullying to “misinformation” about the Covid-19 pandemic – there is little to no precedent for a liberal democracy arresting a tech founder.

Perhaps the closest parallel is the case of Facebook executive Diego Dzodan, who was arrested by Brazilian authorities in 2016 because the technology company allegedly refused to release WhatsApp messages related to drug trafficking investigations.

Dzodan was released after nearly 24 hours in custody after a judge ruled that his detention was “extreme” and amounted to “unlawful coercion.”

The argument that technology companies should be held criminally responsible for the activities of users of their services is tendentious at best.

A less generous view would be that it is nonsense.

For example, car companies are not responsible if drunk drivers or bank robbers flee with their vehicles.

Many of the questions at the heart of the debate were largely resolved decades ago in the United States, the birthplace of the Internet and home to many of the world's most influential platforms.

The Communications Decency Act of 1996 grants Internet providers broad immunity for the content they host, based on the recognition that a free and open Internet could not exist otherwise.

Others are skeptical that a laissez-faire moderation approach is a reasonable excuse for avoiding responsibility.

Timothy Koskie, a postdoctoral researcher at the University of Sydney's School of Media and Communications, said moderation in one form or another was fundamental to the existence of any platform.

“If I were to use the car analogy, I would say the question is to what extent the taxi driver is involved in giving the bank robber a ride,” Koskie said.

While protections for free speech are less stringent in other countries than in the United States, even governments that have significantly tightened the reins on platforms have been forced to back away from more extreme proposals.

The European Union, which introduced comprehensive rules to combat online harm with the Digital Services Act in 2022, cancelled a vote in June on proposals to mass-scan encrypted messaging apps for child sexual abuse material after critics compared the measures to George Orwell's “1984”.

Not surprisingly, Durov's arrest sent chills through the tech scene, where libertarian ideals regarding free speech and privacy are widely held.

Many technology entrepreneurs and internet freedom advocates argue that Durov's arrest sets a dangerous precedent and have called for his release using the hashtag #FreePavel.

Andy Yen, founder of Switzerland-based email provider Proton Mail, called the criminal proceedings “crazy” and said it may no longer be safe for founders of technology companies to travel to France.

“This is economic suicide and will quickly and permanently change the perception of founders and investors,” Yen said in a post on X.

Chris Pavlovski, CEO of Rumble, whose video platform positions itself as a censorship-free alternative to YouTube, said he had “left Europe safely”.

“France threatened Rumble and now they have crossed a red line by arresting Telegram CEO Pavel Durov, allegedly for not censoring speech,” Pavlovski said on X.

“Rumble will not tolerate this behavior and will use all available legal means to fight for freedom of expression, a universal human right.”

Some commentators also wondered why Durov was singled out when other platforms host harmful content.

X owner Elon Musk, who has called for Durov's release, claimed that Meta CEO Mark Zuckerberg was able to evade authorities' scrutiny because he was willing to censor content and share user data.

Although Durov, an avowed libertarian, is notoriously suspicious of government control, characterizing him as a fighter for free speech amid a crowd of government lackeys circumvents an important difference between Telegram and other platforms.

Unlike WhatsApp and Signal, Telegram has access to most of the content shared by its users because it does not use end-to-end encryption by default.

This means that Telegram can share information with authorities to an extent that some of its competitors cannot.

This potentially makes the platform an easier target for authorities frustrated by the technology sector's perceived lack of cooperation with law enforcement.

Questions have also been raised about the geopolitical implications of the case against Durov, who left Russia in 2014 after refusing to silence opposition groups on the former social network VK.

In Russia, both allies and critics of Russian President Vladimir Putin called for his release in a rare show of solidarity among political opponents.

The French government is trying to dispel any suspicion that Durov's arrest was politically motivated or violated civil liberties.

“France is deeply committed to freedom of expression and communication, innovation and entrepreneurship. And it will remain so,” said French President Emmanuel Macron on Monday.

The success of these assurances may depend on what happens next.

After a maximum of 96 hours in custody, Durov must either be charged or released on Wednesday.

Koskie said there is much that is unknown in this case and that the legal theory underlying it may be “idiosyncratic.”

“It could be that there is a much stronger personal connection to the situation in the context of the investigation than with any other platform. In this case, this organization simply crossed a line that no other platform has crossed, but that line has always been there,” he said.