Durov arrest: What could be the Telegram founder's downfall

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Waves have been running high since Telegram CEO Pavel Durow was arrested in France on Saturday evening. Some see a political intrigue against the dual citizen of the Republic of France and the United Arab Emirates, according to Telegram, while others see the end of freedom of expression. Still others see the arrest as the first step towards greater accountability for entrepreneurs who profit from their platforms being misused for criminal purposes and do too little to combat such activities. However, the case is as multifaceted – as the Telegram universe itself.

The allegations are essentially – as far as was known on Monday evening – about Durow's joint responsibility for criminal offenses under French law. The allegations announced by French prosecutor Laure Beccuau on Tuesday are manifold – even if it remains unclear whether they are directed against Pavel Durov himself. Formally, the proceedings have so far been conducted against unknown persons.

According to a press release from the public prosecutor's office, the case concerns possible co-responsibility for the distribution of depictions of child sexual abuse, violations of the Narcotics Act, commercial fraud and the provision of crypto services without a license. According to the French law enforcement authorities, the proceedings have been pursued by the competent authorities in France since July 8. It led to the arrest of Durow on August 24, 2024, who could remain in provisional custody until Wednesday.

Legally complex: what Telegram actually is

In order to be able to classify the allegations, it is important to take a look at how Telegram works and some of the allegations in question. It starts with a legally complex question: What is Telegram actually? One thing is clear: Telegram is centrally operated software that allows people to write messages to each other and send videos and audio recordings from their respective clients. So far, so messenger – or, as it is called in legalese: an interpersonal, number-independent communication service. Providers of such services are subject to slightly different regulations than telephone providers, for example, and also different from other platform operators on the Internet.

However, Telegram is much more than a classic messenger, which is also part of its popularity: the provider offers group chat and channel functionalities. While all participants can post content in groups, channels are designed as one-way channels: One person sends and several or many receive the content. Content can also be accessed freely via the web. So, even if users often perceive them as such, they are not several closed user groups.

The functionalities beyond individual communication, at least in the past, have been argued by the Federal Office of Justice in the matter of the Network Enforcement Act, for example, would fulfill the characteristics of a social network rather than a messenger service, which is designed for direct communication between individual users. This is precisely what the EU Commission assumes with the Digital Services Act. According to its own figures, Telegram has 41 million monthly active users in the EU –, which is four million too few to be considered a particularly large online platform (VLOP). Whether the company's own count is accurate or Telegram has down-counted to avoid this status, which entails additional obligations, is the subject of correspondence between the EU Commission, as the supervisory authority for the largest providers, and the company, which is officially based in Dubai. Unlike other authorities, Telegram is expected to respond to letters from the EU Commission. As a social network and therefore hoster, the provider would not be liable for third-party content until it is notified of possible legal violations. However, it must take appropriate steps if it is notified of problematic and possibly illegal content by users, authorities or organizations – – .

Telegram and the law: a complex relationship

This is precisely one of the core accusations against Telegram: The operator is said to have taken insufficient measures against illegal activities on its services. This accusation has been made against Telegram for a long time and repeatedly. The German lawyer Chan-jo Jun, for example, lists a number of accusations against the operator, stating that "insults, defamation, doxing, stalking, threats, distribution of all types of pornography, copyright infringements and hate crime" take place on Telegram. "Occasional cases of abuse are reportedly removed," Jun wrote on Platform X, which he also regularly criticizes and legally attacks. The many points now presented by French prosecutor Laure Beccuau indicate that this is viewed similarly in France.

A question from the Dutch parliament to the then Minister of Justice shows the role Telegram plays in some areas of crime. Among other things, it refers to a large number of ads for hard and soft drugs on the platform – The Dutch broadcaster NOS said that it had tracked down 2.5 million such ads, and that some of these groups had been active for years. Telegram pointed out that it was actively taking action against such incidents. However, the operator would earn money from such ads – if it did not effectively prevent them and at the same time accept payment for them, which is a legal problem in almost every country in the world.

Telegram and the authorities: Together, if Telegram wants to

Telegram's success is not least because it presents itself as a "safe haven" from censorship of any kind. The provider's software is used as a supposedly secure channel around the globe –, including by terrorists and those who are only regarded as such in parts of the world. Among other things, they regularly publish their letters of confession on Telegram first after attacks. In the EU, the little-known "Terrorism Content Online" regulation applies to such content, which allows authorities to demand the removal of content from the provider in the first step and even order it to be removed in a second step. In 2023, the BKA, which is responsible for Germany, reported a total of 7240 pieces of content to the respective hosters and issued 249 removal orders, which were complied with according to the authority's transparency report. It is not known how many of these related to Telegram –, but given the popularity of the platform among such users, Telegram is likely to have been affected.

Another issue concerns cooperation with the authorities regarding user data if there are concrete indications of criminal activity. According to security circles, this has varied greatly over the years. Telegram officially pursues a policy of "no disclosure of user data to authorities". The service had occasionally complied with police requests – and then stopped again. In April 2023, the German government responded to a request from Anke Domscheit-Berg, a member of the Left Party, stating that Telegram had released user data in 25 cases since 2022, but Telegram is said to have stopped doing so again in 2023.

But would such problems, which are also seen with Telegram in France, be enough to hold the CEO and co-founder of the platform jointly liable? Legally, at least, this is tricky territory. Telegram legally consists of several companies in several countries and with different jurisdictions. Whether Pavel Durow as CEO is personally responsible under French corporate law or criminal law is part of the investigation that the French authorities must carry out.

Possible violation of export regulations for encryption

Another point could also generate a lot of discussion: in its press release, the public prosecutor's office refers to the wording of the French law that contains the export regulations for cryptographic processes. Among other things, Durow or others in the Telegram environment appear to have been accused of illegally exporting cryptographic services and making them available to third parties.

The accusation is likely to raise some questions. This is because Telegram only encrypts at the transport level to the server; end-to-end encryption is only possible for chats between two users and must first be activated. In addition, the security of the company's own open-source end-to-end encryption solution called MTProto2.0 is the subject of extensive discussions time and again. However, the French public prosecutor's office is apparently investigating the extent to which Telegram in general and Durow in particular may have violated the "Loi n° 2004-575 du 21 juin 2004 pour la confiance dans l'économie numérique" with their encryption. Under French law, certain procedures are subject to authorization – by the Prime Minister of the Republic. However, due to the lack of a registered office in Durow's country of citizenship, France, the law would only be relevant if the development had taken place in France itself –, which is unlikely given the company's history.

TONCOIN could become Durow's main problem

However, all of this could ultimately turn out to be Durow's smallest dilemma. After all, it may not be Telegram and the associated difficulties that end up being the biggest problem. Instead, it is an entirely different area connected to the platform: The Open Network Coin, or TONCOIN for short. The cryptocurrency was originally designed by Pavel Durov's brother Nikolai to create a currency that could be used to buy advertising within Telegram and in which channel operators with more than 1,000 users on Telegram would receive a 50 percent share. In France, cryptocurrencies are subject to licensing – and violations of this obligation are punishable by law. Officially, however, Durow no longer plays a role in the cryptocurrency – administration has been handed over to a foundation in Dubai.

The French judiciary will now decide by Wednesday at the latest whether the accusations are directed against Durov or whether he will only be questioned as a witness. And it is independent, the arrest was not preceded by any political influence, emphasized French President Emmanuel Macron in a statement on Monday afternoon. This leaves plenty of time for speculation of all kinds until a decision is made – and therefore plenty of opportunities to spread your own views on the platform of your choice.

(vat)