Free speech accountability

Online content moderation is currently at the forefront of free speech and censorship debates. Typically, government entities rely on administrative lawsuits and fines to ensure that social media companies enforce their own standards of speech—from prohibiting child pornography to removing terrorist groups.

Two weeks ago, however, France took these efforts one step further and arrested Telegram founder and CEO Pavel Durov—Russian-born and a dual citizen of France and the United Arab Emirates—for his alleged failure to mitigate criminal activity on Telegram. Authorities released Durov on bail, but free speech advocates and social media platforms are on alert as the European Union pursues more aggressive forms of censorship.

Telegram, which boasts nearly 1 billion users worldwide, is the most secure social media and online messaging platform available. Established in 2013 to counter growing concern over government censorship and digital privacy, Telegram’s website boasts that it has “disclosed 0 bytes of user data to third parties, including governments.” With end-to-end encryption, even Telegram cannot access certain private messages between users. The platform ensures the least restrictive form of content moderation and employs an average of only 30 full-time engineers.

The importance of platforms like Telegram cannot be understated. In August alone, the United Kingdom arrested citizens for alleged “hate speech” online. Irish authorities arrested citizens for opposing higher rates of immigration and one teacher for his refusal to use a student’s “preferred pronouns.” Ahead of X hosting an interview with Donald Trump, the European Union sent a letter to Elon Musk threatening that he and his platform may be held liable for improper speech. And in the United States, Mark Zuckerberg confessed that Meta complied with pressure from the Biden-Harris administration to censor online content about COVID-19 and the 2020 presidential election.

These are clear violations of free speech, especially in the United States. No entity or person has the right to limit speech for political gain. But not all concerns about online content are this straightforward.

Indeed, the basis of Durov’s arrest, according to French authorities, is the ongoing criminal activity on the platform. The European Union implemented the Digital Services Act in 2022, which “regulates online intermediaries and platforms such as marketplaces, social networks, content-sharing platforms.” French authorities claim and Telegram denies that the platform has not complied with requests to crack down on illegal activity.

For example, ISIS used Telegram to coordinate the 2015 terrorist attacks in Paris. Similarly, Hamas used Telegram to spread footage of its Oct. 7, 2023, attack on Israel, including content of Israelis its members maimed, murdered, and kidnapped. Broadly, Telegram hosts high rates of drug trafficking, fraudulent transactions, and material depicting child sexual abuse.

While Telegram has banned some channels in the past, the structure of the platform makes it very difficult to moderate criminal or morally abhorrent activity. For Telegram, the cost of hosting secure conversations may be the risk that some, or many, will use the platform for illicit purposes. As Durov said in a CNN interview in 2016, “You cannot make it safe against criminals and open for governments. [Telegram is] either secure or not secure.” The ongoing question is who should be held accountable.

Durov’s arrest and the ongoing investigation into Telegram matters internationally as nations such as the United States continue to debate free speech, censorship, and online regulation.

For starters, Telegram, like most social media companies, is an international platform. Legal challenges, especially related to content, are not merely restricted to one country. How French authorities handle their investigation into Telegram through Durov will have massive implications for free speech around the world. For example, if the European Union can penalize X via Elon Musk—a U.S. citizen—over free speech, then what does this mean for the content that U.S. citizens post, especially when traveling abroad?

Second, as the United States explores online content regulation, lawmakers must decide who to hold accountable and how. From proposals to reform Section 230 to the Kids Online Safety Act, lawmakers broadly agree that platforms should be held accountable for knowingly allowing or encouraging harmful content including child pornography, self-harm, or terrorism.

But what about cases, as with Telegram, where it is effectively one massive messaging platform? For many, such as Musk and U.S. intelligence documents-leaker Edward Snowden, the decision to arrest Durov amounts to a censorship and intimation campaign and a step in the wrong direction for online regulation. For others, the rampant dissemination of child pornography and harmful content makes the partial loss of unmonitored speech a worthwhile trade-off.

Pavel Durov will continue to meet with French authorities twice a week as the investigation into Telegram continues. If Durov, and Telegram by extension, is found guilty, he could face up to 10 years in prison. As governments engage in free speech and online censorship, it is essential for lawmakers and citizens alike to protect their own rights and ensure that wrongdoers—not merely those who do not parrot the official party opinion—are held in check.