It's easy to forget it, considering how often discussions on major online platforms regulation over the past ten years have revolved around major pieces of legislation aiming to punish digital companies with fines. But social media bosses can also be criminally liable, as was evidenced on Saturday, August 24, by the surprise arrest at Le Bourget airport (Paris region) of Telegram CEO and founder Pavel Durov and his indictment on Wednesday, 28, for alleged complicity in a series of crimes and misdemeanors committed on his platform.
In recent years, major European laws like the General Data Protection Regulation (GDPR) and the Digital Services Act (DSA) have been at the center of the debate on the regulation of large online platforms. These texts outlined a European regulation philosophy aimed at creating a clear and safe legal framework for companies, reinforced by obligations of transparency, privacy protection, and content moderation, with very substantial fines in cases of repeated breaches and, as a last resort, the possibility of suspending their services in the EU.
But this approach works much better when these platforms at least play fairly, which has not always been the case with Telegram. The company claims it complies with DSA obligations, but according to the Financial Times, the European Commission suspects it deliberately underestimated its user base in Europe. It declared 41 million users, 45 million users being the threshold for a company to be considered a "very large online platform" subject to much stricter obligations. The Commission reserves the right to qualify the application as a "very large online platform."
Both the DSA and the RGPD are the legacy of the debate on platforms' criminal liability that was mostly settled 20 years ago. In the early 2000s, every European country, the US and almost all democracies worldwide passed similar laws that aimed for a compromise: Allowing major online services to develop without putting them at permanent legal risk while preventing the proliferation of illegal content online.
The French law on confidence in the digital economy, adopted in 2004, specifies that digital platforms are not criminally liable for messages posted by their users if – and only if – they promptly remove illegal content that has been reported to them. While this simple principle was initially criticized, it has proved highly effective over time, providing a clear and functional legal framework. It was updated by the DSA, which added obligations of transparency and moderation resources.
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