Was the arrest of the Telegram CEO in France a clampdown on free speech or a victory for those who want to hold the all-powerful big tech platforms to account? Anton Harber takes a close look

The arrest of Pavel Durov, CEO of social media Telegram, in France represents the beginning of a grand showdown between the European Union and the powerful owners of the major social media platforms, one that could shape our global communications system.

Telegram is one of the world’s biggest platforms, with over 900 million users. It is central to personal and mass communications in places like Russia, Ukraine and India, where it is in common, everyday use. It’s offer of better encryption and less content moderation than rivals like WhatsApp has drawn to its ranks those for whom communications security and access to unfiltered news is vital. This includes anti-government activists, journalists and those who live in repressive countries, but also illegal traders, human traffickers and terrorists.

This is what gives Telegram its dual character: a valuable tool for human good, such as spreading uncensored news or organising resistance, it may also be used for human trafficking, child porn, or spreading hate speech and dangerous disinformation.

The EU last year passed its Digital Services Act, which, they argued, gave greater democratic control and oversight over the platforms, mitigated risks like disinformation and manipulation of children, offered better protection of fundamental rights and less exposure to illegal content. It was intended to reign in the massive, supra-state power of the global platforms and make them accountable to governments.  The EU argued that it was going after illegal activity, not legitimate free speech, and were doing it because some of the platforms declined to monitor and moderate their own content, or did it only lightly.

The US has taken a different approach. In 1996, when the internet was in its infancy, they passed Section 230 of their Communication Act, giving platform owners and users immunity from responsibility for content created by others. They made it like the telephone, where those who provide the service have no responsibility for what is said over it, rather than like media, where owners, publishers and editors are held responsible for their content. This boosted the growth of the Internet and allowed the US to take a preeminent position in it, but it also gave free reign to those who would use the Internet’s extraordinary reach and speed for nefarious activities. The US authorities could go after those who conducted these activities on the internet, but it has only once or twice gone after platform owners or executives when they were personally implicated.

Undoubtedly, this week’s arrest does limit free speech, but the promotion of violence, harm to children and other illegal activities is everywhere restricted. The question is whether the EU action will impact beyond this, chilling free speech, and whether this is justified by the need to deal with illegal and dangerous activity.

As with the media, it is preferable when the platforms or the industry self-regulate, rather than inviting governments – who are tempted to use such institutions against their critics – to intervene. That is why our media industry, for example, has the Press Council, the Broadcasting Complaints Commission and the Advertising Standards Authority. We have chosen to impose a set of rules and standards on ourselves to discourage government interference.

Some of the platforms, like Meta (which owns Facebook, Instagram and WhatsApp) and TikTok have, under political, social and advertising pressure, taken this route, setting up elaborate systems to moderate their content according to their own Community Standards. It is an gargantuan task, given the billions of daily words and pictures they have to filter. They use artificial intelligence to look for certain markers, and humans to make the more difficult decisions, but it is a system prone to error, with much foul material slipping through and good material blocked.

Facebook has set up an independent oversight board of respected individuals to consider appeals against their rulings. As an indication of the extent of the problem, in the four years of their work they have had some 2 million appeals, and have ruled on about 150 of them.

They have to deal with different laws and norms in different countries. What is acceptable in one place, is verboten in another; what is considered disinformation by left-wingers is true for right-wingers; f you don’t protect LGBTQI+ people in one country, you get into trouble, and if you do, you get into trouble in another. What is hate speech in one context, may not be in another. Nakedness in one context is a problem, in another (such as medical), it is acceptable. These fine distinctions – which a computer often can’t pick up – are exploited by those who want to slip under the fence.

These are the platforms trying to deal with the problem internally. Others, like X and Telegram, argue that their right to free speech is sacrosanct and they have contempt for attempts by governments to impose on them. Without much content moderation, they have become havens for extremist opinions and illicit activities.

By arresting the CEO, the EU is showing its frustration and determination to deal with the issue. Telegram is based in Dubai and Durov is proud of presenting himself as a global itinerant without a home, so he and his company can be difficult to pin down.  His arrest will make all the big platform executives – like Mark Zuckerberg and Musk – jumpy about travelling.

The arrest signals a battle for national sovereignty over platforms that recognise no borders and defy national authorities. We have had a taste of this in South Africa, where the four major platforms declined to give information about what steps they took to prevent election disruption in terms of our access to information law. Although they have offices and staff in South Africa, they argued that the law does not apply to them because their headquarters and data were not here. Fortunately, our Information Regulator is taking them, asserting their obligation to comply with local law.

One has to keep in mind how powerful these super-rich executives are, the emperors of the universe whose enourmous authority and power is put to service in their self-interest. They can, for example, manipulate their algorithms to ensure that those who criticize them are hidden from their audience of billions, and those who support them are amplified. They can boost their friends and bury their enemies. And they can do it secretly, without any accountability.

Durov’s arrest this week therefore sets the scene for a battle royal between the 27-nation EU and the emperors of big tech. At stake is our free expression, and we will have to watch carefully to ensure that either side doesn’t trample on it.

*Harber is executive director of the Campaign for Free Expression