between the hammer of criminal justice and the anvil of the EU

OWe could almost have forgotten it, as the debates on the regulation of large platforms have, for ten years, revolved around major texts whose philosophy is to hit digital companies in the wallet. But social network bosses can also have criminal responsibility, as demonstrated on Saturday, August 24, by the surprise arrest at Le Bourget of the CEO and founder of Telegram, Pavel Durov, and his indictment on Wednesday 28 for his alleged complicity in a whole series of crimes and offenses committed on his platform.

In recent years, major European texts, led by the General Data Protection Regulation (GDPR) and the Digital Services Act (DSA), have been at the centre of discussions on the regulation of large digital platforms. Together, these texts outlined a European philosophy of regulation, aimed at imposing a clear and secure framework for companies, accompanied by obligations of transparency, protection of privacy, and moderation of content, with very significant fines in the event of repeated breaches and, as a last resort, the possibility of suspending their services in the EU.

But this approach works much better when platforms play the game at least, which is not always the case with Telegram. The company assures that it complies with the obligations of the DSA. But according to information from the Financial Timesthe European Commission suspects the company of deliberately underestimating its number of users in Europe. It claims 41 million, while 45 million are required for a company to be considered a “very large platform”, subject to much stricter requirements. The Commission reserves the right to classify the application as a “very large platform”.

The DSA, like the GDPR, are the heirs of a debate, largely settled for twenty years, on the criminal liability of platforms. In the early 2000s, all European countries, as well as the United States and almost all democracies in the rest of the world, adopted very similar laws, aiming for a compromise: to allow large online services to develop without making them run a permanent legal risk, while avoiding the proliferation of illegal content online.

The French law on trust in the digital economy, adopted in 2004, provides that digital platforms are not criminally liable for messages published by their users if, and only if, they quickly remove illegal content reported to them. A simple principle, initially criticized but which has proven, over time, to be very effective, by providing a clear and functional legal framework. The DSA has updated it by adding transparency and means obligations in terms of moderation.

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