Comment on France’s Prosecution of Telegram Founder Pavel Durov

September 7, 2024 · by · in Content Regulation, Derivative Liability

I don’t fully understand exactly what’s happening with Telegram and Pavel Durov in France. However, I have observed how many people don’t know the history of governments prosecuting Internet executives for the content or actions of third parties using their services.

I sent the following to a reporter:

Europe has a long history of individually prosecuting Internet company executives for third-party content. [FN] For example, though it’s mostly forgotten today, the European Internet community was roiled three decades ago when Germany prosecuted and convicted CompuServe executive Felix Somm for users’ dissemination of child sexual abuse material. (Somm was eventually acquitted on appeal). These criminal risks are an important factor in why the European Internet has not seen the kind of innovation that we’ve seen in the United States. Entrepreneurs know how to take financial risks and can spread those risks across investors, but they are much less willing to take risks that jeopardize their personal liberty. Thus, criminal prosecutions against Internet company executives for third-party content do much more to chill entrepreneurship and innovation compared to even the harshest civil remedies.

FN: Some other European examples:

BONUS: Selected other examples of criminal proceedings against Internet executives related to UGC (this list is hardly comprehensive):

  • Ross Ulbricht (Silk Road/USA)
  • Backpage Executive Team (multiple prosecutions/USA)
  • Kim Dotcom (Mega/USA)
  • Avnish Bajaj (Baazee-eBay/India)
  • Fabio José Silva Coelho and Edmundo Luiz Pinto Balthazar (Google/Brazil). Brazil and Musk are locked in a test of wills right now
  • Diego Dzodan (Facebook/Brazil)

Yes, Internet executive prosecutions occur in the US too. Also, though not individual liability, in 2008-09, the USDOJ prosecuted the search engines for publishing illegal gambling ads and Google for publishing illegal pharmaceutical ads in 2011. Also, a reminder: Section 230 doesn’t apply to federal criminal prosecutions, but the First Amendment does. If Durov were being prosecuted by the USDOJ, Section 230 wouldn’t help him at all.

Other relevant developments of note: the collapse of the non-Russian Internet community in Russia following the Ukraine invasion in part because company employees feared criminal prosecutions or being jailed as hostages; China’s treatment of Internet services; and the proliferation of “landing laws” that require companies to provide an employee who can be treated as a “hostage” to compel compliance with local laws, just or unjust (i.e., ensuring there’s always some Durov figure that governments can target).

Finally, I note David Carruthers (BetOnSports/USA) as a supplementary example. He wasn’t prosecuted for third-party UGC, but like Durov, he was arrested during an airplane layover (in Dallas). As I teach my students in Internet Law, if you’re breaking some other country’s laws, your choices for vacation spots may be limited.