Just as Europeans are not going to liberalize the civilian firearms market, they are also not subject to the First Amendment to the US Constitution. This amendment, one of the ten amendments adopted in 1791 and collectively known as the Bill of Rights, broke with the more restrictive English colonial regulations on public speech, where common law criminalized criticism of the government as seditious libel.

It is important to recall the many exceptions to this principle, including obscenity, defamation, incitement to riot, harassment, secret communications, trade secrets, classified documents, copyright, and patents.

Finally, from 2020, the US government has imposed new rules on Chinese media present in the United States, which are now treated as diplomatic missions so to counter Chinese propaganda. Beijing considers these measures unacceptable: “The United States has always prided itself on its freedom of the press. But it is interfering in the smooth running of the Chinese media in the United States and hindering their work”, denounced Geng Shuang, a spokesman for the Chinese Ministry of Foreign Affairs.

However, it was in reference to the First Amendment adopted by the United States Congress in 1791 that libertarian voices harshly criticized the actions of the French justice system against Pavel Durov. In his hashtag #FreePavel, Elon Musk denounced the move as an attack on freedom of expression. He, who generates half of his Tesla sales in China, has never spoken against Beijing’s decision to ban the distribution of X (formerly Twitter) in China. In the French case, Durov’s team denounced the decision as censorship.

Yet, this case has nothing to do with freedom of expression or censorship. The issue concerns the criminal content conveyed by Telegram. Durov faces preliminary charges as part of a French investigation into his alleged failure to tackle crime on his platform, including drug trafficking and child sexual abuse. A court may have to decide whether the app violated French law and whether its CEO, of Russian origin, can be held liable.

It is understandable that Durov’s past conflicts with the Kremlin explain his resistance to censorship. He reportedly fled Russia in 2014 after refusing to share data on Ukrainian users of his VKontakte network, which was then sold to people close to the Kremlin. Telegram is now based in Dubai. As a result, content moderation is weak and the response to investigations by legal authorities is delayed.

While Telegram’s design offers a safe haven for dissidents of authoritarian regimes (from Belarus to Hong Kong to Iran), it has also become a convenient tool for extremists and criminals. It is troubling that Silicon Valley companies align with Russian bloggers in claiming that European regulations lead to censorship.

This brings up another debate: Telegram refuses to consider itself responsible for the misuse of its platform. However, the Budapest Convention on Cybercrime, ratified by nearly seventy countries (but not by Russia or China), enables the harmonization of legislation and cooperation against electronic crimes, including the dissemination of child pornography. The Convention stipulates that platforms must contribute to combating these activities.

The First Amendment to the US Constitution grants broad protections to freedom of expression but it does not protect content or activities that violate the law. Musk’s libertarian stance reflects a new form of cultural imperialism, which can only be countered by law and reasoned argument. On the other side are judges and governments that make the laws and have them enforced. As recently demonstrated by the Brazilian Supreme Court, which banned X, a supporter of far-right groups, and imposed fines on VPN users, in the name of protecting Brazilian democracy.

These two decisions—one in France and one in Brazil—signal that the era of impunity for social networks is coming to an end in democratic countries. This question does not even arise in authoritarian regimes. Respect for rules, laws, and the sovereignty of states is the great battle of the decade, within a European Union that is, first and foremost, a community of law. We will have to work hard to cultivate allies in the United States.

Michel Foucher
Geographer, diplomat and essayist
Member of the Strategic Orientation Council of iDFrights