Since August 24, the case of Pavel Durov, head of Telegram, has garnered significant attention. Many are decrying the situation as a dictatorship, claiming that neither Telegram nor Pavel Durov violated the law. Let’s explore the facts.
Benjamin Martin Tardivat has already reviewed the legal procedure, particularly the legal foundations of the charge. I would add that we must emphasize the banality of this charge. Indeed, in this case, complicity (at the basis of the most serious offences) is the subject of many criticisms, which are understandable, since common sense leads to the argument that Pavel Durov was not – and could not have been – aware of the offences committed on Telegram. However, this overlooks the fact that complicity can be invoked at the discretion of the plaintiffs and/or the Public Prosecutor’s Office against a company director with a presumption of guilt (as seen in cases involving directors of major banks based in Switzerland, who were convicted of offences—especially tax fraud laundering—committed by some of their employees, whose names they did not even know). Convictions can be severe, unless it is proven that the crimes or offences in question were entirely unknown to the accused.
The same applies to Pavel Durov, except that he also faced the obligation to respond to legal requisitions, which he appears to have failed to comply with. Strangely, since the custody of its CEO, Telegram would have become much more cooperative… On the issue of complicity, the defense might try to invoke the specific nature of the platform’s business model as a defense, but as Benjamin Martin Tardivat perfectly pointed out in his analysis, this argument does not hold.
Given that Telegram operates within the EU, the applicability of the Digital Services Act (DSA) must be considered, even if it hasn’t been directly invoked by the prosecutor’s office. Telegram is primarily a private messaging service, and it could argue that the obligations imposed by the DSA do not apply to it. Additionally, since Telegram claims not reaching the threshold of 45 million users in the EU (the Commission is currently checking this fact), it does not fall under the DSA. Thus, the platform could argue that by not responding to the French requisitions, it has not violated EU law. On these grounds, Telegram could assert the primacy of EU law, contending that since it hasn’t violated European law—which is the competent authority on the matter—it cannot be prosecuted by France.
Apart from the fact that this argument seems questionable, it would still be necessary to demonstrate that France did not have the competence to enact the criminal rules in question. The question of competences in this area of criminal law between the EU and the States falls under Articles 82 and 83 of the Treaty on the Functioning of the European Union (TFEU). The general principle is this: where the EU has not legislated in an area of shared competence, especially in criminal matters, the Member States regain full competence. This is exactly the case here!
The EU has provided for monetary sanctions against companies, while France has imposed criminal sanctions on individuals. It can therefore be argued that France has not infringed EU law by adopting legislation that allows for the criminal prosecution of platform managers. Thus, the argument of EU law’s primacy over French law does not seem likely to succeed in favor of Pavel Durov.
Furthermore, it is clear that the prosecutor’s office is pursuing an objective that has long been imposed on actors in the non-digital world: the prohibition of illegal public speech. Newspapers, radio stations, and television channels are prosecuted when they violate this fundamental rule. Therefore, it must be concluded that the proceedings in this case appear to be well founded in law.
Unless they contradict the principles set by the European Court of Human Rights (ECHR). The ECHR recently ruled that simply using encrypted messaging is not an offense. However, Telegram is not just an encrypted messenger, as it also offers public chat channels.
There remains the question related to the main incrimination if we understand what he is accused of through what the prosecutor’s office has made public – that is to say the alleged refusal of Pavel Durov to communicate the information requested by way of requisitions. He could then invoke Article 8 of the ECHR, i.e. for every person, “the right to respect for his private and family life, his home and his correspondence”. The CJEU, in a now established case law (in particular with the “Quadrature du net” judgments, etc.) has sought a fair balance, using the principle of proportionality, between privacy and its respect on the one hand and public security on the other.
In conclusion, this case, which -let us repeat- is a trivial one under French criminal law, raises several legal questions regarding both the jurisdiction between the EU and the Member States and the boundary between privacy and public security. In the event that Telegram, and consequently its CEO, manage to escape sanctions, it will prompt important questions for those of us advocating for digital players to be subject to the same laws as companies in the real world, as to whether there is not a case for banning this type of platform, which is likely to fall outside the scope of the DSA and evade French law.
Jean-Pierre Spitzer
Honorary Lawyer at the Court and former Legal Secretary at the CJEU
Vice-President of iDFrights
