Image Credits- WSJ
Introduction
Telegram, the messaging app, has been constantly involved in various controversies related to privacy concerns and legal disputes pertaining to its policies. The recent arrest of its founder and CEO Pavel Durov by the French authorities on the grounds of refusal to cooperate with the French government and facilitating the sharing of illicit content linked to drug trafficking, violent propaganda, child pornography, and organised crime sparked a global debate on the responsibilities of the platform owners and the balance between privacy and law enforcement. With Telegram facing constant scrutiny in India owing to alleged criminal activities being carried out on the platform, the arrest of its CEO could further prompt the authorities to adopt a rigid stance in terms of content moderation and user data access. This incident could set a new precedent of holding the tech executives responsible for user content, impinging on the provision of safe harbour, which is accorded to social media platforms from protection against being held liable for content shared by users. His arrest raises significant questions regarding the extent to which tech platforms should be held responsible for the actions of their users and the potential intervention of governments in digital spaces.
How could this case turn the tide on “Safe Harbour” protection?
Safe Harbour rules guarantee protection to social media intermediaries from legal proceedings for user content posted on their platform. According to these, it is held that since social media platforms cannot control what users post, they should not be held liable for any illegal content posted by their users, provided they are willing to take down such content when asked by the government or courts. Due to the above provisions, these are considered powerful tools to enable freedom of expression on the internet because, in the absence of these rules, social media intermediaries would unnecessarily clamp down on users for even their anti-hate speech or non-illicit content in order to prevent any legal action against themselves. So, even if a user shares something genuine it would be at the risk of being taken down by platforms in order to protect themselves from any potential legal dispute thus impinging on free speech rights of individuals. In the United States, Safe harbour protection is provided under Section 230 of the Communications Decency Act, which shields platforms from being held liable for user content. In the case of India, the Information technology act offers such protection to social media intermediaries. The European Union’s Digital Services Act aims to create a safer internet by regulating social media platforms and illegal content. The proposed law says social media platforms will not be held responsible for unlawful behaviour of users, but if they're “aware of illegal acts and fail to remove them,” then they will be held liable. Many national governments have tried to misuse these rules to pressurise social media platforms that fail to comply with their content takedown requests. Vietnam heavily censors social media, requiring platforms to remove content deemed to oppose the government. The Cybersecurity Law mandates that companies store user data locally and provides the government with access to user data upon request. China and Russia impose similar restrictions in their handling of social media intermediaries. In this context, the recent legal action taken against Durov is a violation of these safe harbour provisions accorded to social media platforms and raises significant questions about the extent to which tech executives should be held responsible in such situations.
Privacy vs Responsibility
Telegram gives enormous importance to user privacy, and due to this, it has often been criticised by the western governments for a lack of content moderation. Because of its strong privacy features and refusal to surrender to government interventions, it has often proved to be a challenge for state authorities all over the world. This could expose the tech executives to risks when authorities wish to clamp down on illegal activities, coercing them into greater compromise with user privacy. Thus, this arrest could have a significant impact on the platforms that have an unwavering commitment to secure user privacy. The role of the state in monitoring the online space and the duty and responsibility of platforms has always been a contentious issue with state governments wanting to have greater control on digital space and platforms refusing to comply citing their privacy commitments. This arrest highlights the need to strike a balance between user privacy and content regulation to ensure that individual freedom of expression is not at stake and, at the same time, illegal activities are also monitored.
A look at past issues
Telegram’s founder and CEO, Pavel Durov, is a staunch supporter of freedom of speech; he calls it ‘a free platform’ and supports strong privacy policies for its users. Earlier he fled Russia when asked to share data of the Ukrainian users of VKontakte, another social media platform that was founded by him in 2007. He reportedly said in 2014, “I would rather be free than to take orders from anyone." Because of its refusal to share information with governments, it has faced many legal issues time and again. Although it has been a crucial platform for disseminating useful information, at the same time it has also been a conduit for misinformation and illegal content, and all of this has made it a target in the past as well. In India it has been under constant scrutiny due to its failure to curb unlawful activities such as sharing of copyrighted material, leak of examination papers, allegations of stock price manipulation and extortion. In 2018, Iran tried to ban it, so did Russia, and Spain accused it of intellectual property violation. In 2023, it was blocked by Brazil for some time, so it has been in controversies with governments many times, and now France has made its case for failing to moderate content and not cooperating with authorities. Despite the controversies surrounding Telegram, its founder and CEO hold it as a ‘neutral’ platform with no political affiliations of any kind. This lack of cooperation becomes a hindrance and affects the role of the state in giving justice to the victims. This is a serious issue and needs to be addressed at the earliest to avoid any complications further.
Image Credits- The New Yorker
Comparative Analysis of Data Privacy practices by other platforms
As we explore the domain of data privacy for users, it is necessary to have a comparative look at the privacy policies of other social media platforms. Like Telegram, Meta (formerly Facebook), and X (formerly Twitter) are also platforms that are often involved in controversies related to their privacy policies and content moderation. Mark Zuckerberg’s Meta has faced numerous legal cases due to its user data breach cases. Despite its commitment to a “privacy-focused outlook,” the platform mainly relies on extensive data collection for advertisements based on personalised preferences, which raises suspicions about its commitment to protect user privacy.
Another case is that of Elon Musk’s X, which is often surrounded by controversies due to its data use practices. It is often alleged that user data is used by the platform to train AI models without consent, leading to privacy concerns from many European nations. The Indian government and X also have very complex relations with the government, reportedly alleging it as a habitual “non-compliant platform” when it refused to comply with takedown requests from the government. Even then, its policies have less transparency in content moderation, which raises suspicions regarding user privacy.
Telegram is different from both of these platforms due to its unwavering commitment to privacy without extensive reliance on user data collection. But the recent case raises suspicions about its content regulation policies. Recently, Whatsapp and the Indian government came into a conflict over sharing information about the ‘first originator’ of information when the government under Information Technology rules, 2021 asked the platform to share information in order to tackle fake news and illicit information. Whatsapp refused to share information on the grounds of refusal to violate “end-to-end encryption” citing its commitment to protect user privacy leading to a long legal battle between the two. Such cases point at the need to have a mechanism wherein both the platforms and the governments are able to arrive at a solution in complex situations and the significance of collective global efforts to ensure effective cooperation among social media intermediaries and the governments. Under the constantly evolving digital landscape, there is an urgent need to have globally agreed rules in this domain.
Indian scenario and India’s transforming perspective on Safe Harbor and Data privacy
In India, Telegram is under constant scrutiny due to its alleged involvement in recent paper leak cases, for instance, the UGC and NEET paper leak scams. These proactive measures taken by the Indian government highlight the seriousness of the issue and can have significant implications for the future of Telegram in the country. In India, the Information Technology Rules require social media platforms with over 5 million users to have a Chief Compliance Officer appointed, who can be held liable if the platforms fail to comply with takedown requests or any other rules. As of now, no social media company has been held liable with regards to this rule. Under the Digital India Act, 2023, there is a provision according to which the safe harbour granted to social media intermediaries will be reviewed, which led critics to argue that it is against free speech and will lead to the creation of a surveillance state. In India, privacy is given special emphasis especially after the Supreme Court established Right to Privacy as a Fundamental right in 2017 (Justice K.S Puttaswamy vs the Union of India) and the Indian government is also a staunch supporter of user privacy but on the whole it has a stern stance when it comes to the regulation of social media intermediaries. But this does not allow an individual to escape from liability after commiting crimes, time and after the judiciary has also highlighted the exceptions to this right i.e, when it comes to protecting national interest and other fundamental rights of citizens, the right to privacy cannot be used as a shield. Thus, the Indian government and judiciary has a stern stance and commitment to secure individual rights, freedom of speech and privacy at the same time regulating content surfacing on social media which could be detrimental. What is needed now is to establish a framework at the global level where free speech, privacy and respect for the rule of law all is defended. The question that arises is how? And the answer lies in cooperation and negotiation at the international level.
Conclusion
This recent case highlights the challenges of the modern information landscape, including the lack of a global strategy to address organised crime facilitated by social networks while upholding human rights and freedoms online. This case is a crucial moment in the global debate over data privacy and digital regulation. The outcome of this case will significantly influence the way content moderation policies are framed by other social media intermediaries. A compromise on the security, safety, and privacy of individuals due to lack of content moderation in the name of enabling free speech cannot be justified. There is a need to ensure that free speech, privacy, and respect for the rule of law are all being taken care of simultaneously. For Telegram to be able to maintain its position as a strong free speech supporter, it must come clean of all the charges by keeping the spread of illicit content under check without undermining user privacy. The need of the hour is to establish a balancing mechanism which ensures that free speech, privacy, and adherence to laws go hand in hand so that platforms and national governments cooperate to create a secure space for all.
By Saumya Kushwaha
Saumya Kushwaha is a first-year Political Science student at Hindu College, University of Delhi. She has a keen interest in reading and learning about geopolitics,economy and current happenings in India and the world. Moreover, She is passionate about debating, writing and exploring diverse perspectives on socio-economic issues.
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