Source: The Hindu 

Introduction  

The arrest of Telegram founder in Paris has reignited the debate on digital platform owners' liability for user-generated content. This incident raises critical questions about the balance between free speech, user privacy, and platform responsibility in the digital age.  

What was the Background of Founder’s Arrest? 

• The founder of Telegram, a digital messaging platform, was arrested in Paris on 24^th August 2024. 
• French authorities have initiated an investigation against Founder on multiple serious criminal charges. 
• The charges against Founder include:  
  • Enabling the distribution of child sexual abuse material on the Telegram platform  
  • Facilitating drug trafficking through the platform 
  • Refusing to cooperate with law enforcement agencies 
• The case raises questions about the liability of digital platform owners for user-generated content. 
• Telegram's content moderation policies and its level of cooperation with law enforcement agencies are under scrutiny in this case. 
• The arrest has implications for the application of "safe harbour" provisions typically extended to digital intermediaries under various jurisdictions' laws. 
• The case potentially challenges the established principle that platform owners should not be held personally liable for user-generated content, except in cases of direct complicity. 
• This legal action occurs in the context of growing global concerns about the regulation of digital platforms and their responsibilities in content moderation. 
• The case implications for the interpretation and enforcement of digital platform regulations, including the EU's Digital Services Act and similar laws in other jurisdictions.

What is the Safe Harbor Provision in Information Technology Act, 2000? 

• Safe Harbor Provision:  
  • The IT Act, 2000 provides for a "safe harbour" protection for intermediaries. 
  • Intermediaries (such as social media platforms) are not to be held liable for user-generated content if they comply with certain conditions. 
  • Section 79 deals with Exemption from liability of intermediary in certain cases. 
  • While the Act provides safe harbor, intermediaries are expected to have some level of content moderation in place. 
  • The exact requirements for content moderation are not fully specified in the Act itself but are elaborated in subsequent rules. 
• Compliance with IT Rules:  
  • The IT Act is supplemented by IT Rules, including those issued in 2023. 
  • These rules may require intermediaries to have specific terms of service for operating in India. 
• Cooperation with Law Enforcement:  
  • Intermediaries are expected to cooperate with law enforcement agencies, subject to due process. 
  • This may include having compliance officers or designated representatives to facilitate such cooperation. 
• Personal Liability:  
  • The Act generally does not impose personal liability on founders or executives of intermediaries for user-generated content. 
  • However, in cases of direct complicity or knowledge of illegal activities, personal liability may be considered. 
• Encryption and Privacy:  
  • The Act does not explicitly prohibit end-to-end encryption or minimal metadata storage. 
  • However, these features may limit an intermediary's ability to comply with certain law enforcement requests. 
• Penalties for Non-Compliance:  
  • The Act provides for penalties for intermediaries that fail to comply with its provisions. 
  • Specific penalties may be detailed in the rules issued under the Act. 

What is Telegram's Non-Compliance with 2023 IT Rules? 

• Non-Compliance with Terms of Service Requirements:  
  • Telegram does not comply with certain provisions of the 2023 IT Rules that mandate specific terms of service for entities operating in India. 
• Lack of Physical Presence:  
  • Telegram, like many global companies without a physical presence in India, does not adhere to all regulations set forth in the 2023 IT Rules. 
• Potential Risk to Safe Harbor Protection:  
  • Telegram's non-compliance with certain provisions of the 2023 IT Rules may potentially jeopardize its safe harbor protection under the Information Technology (IT) Act, 2000. 
• Transparency Reporting:  
  • The 2023 IT Rules require the submission of transparency reports, a requirement that Telegram may not be fully complying with. 
• Compliance Officer Designation:  
  • The Rules mandate the designation of a compliance officer, which Telegram may not have implemented as required. 
• Selective Enforcement Risk:  
  • While the Indian government has stated that Telegram is compliant with regulations, there is a potential risk of selective prosecution due to partial non-compliance. 
• Content Moderation on Public Channels:  
  • While Telegram maintains the confidentiality of private chats, it does permit scrutiny of content on public channels, which may partially align with content moderation requirements. 
• Investigations into Platform Misuse:  
  • The Ministry of Electronics and Information Technology has announced investigations into Telegram over concerns of its use for illegal activities such as extortion and gambling.

What is MeitY's Investigation of Telegram? 

• The Ministry of Electronics and Information Technology (MeitY) has officially announced an investigation into Telegram. 
• Scope of Investigation:  
  • The investigation focuses on concerns that Telegram is being used for illegal activities. 
  • Specifically mentioned illegal activities include extortion and gambling. 
• Legal Basis for Investigation:  
  • While not explicitly stated, the investigation likely falls under the purview of the Information Technology Act, 2000, and subsequent amendments. 
  • The 2023 IT Rules may provide additional legal grounds for the investigation. 
• Platform Responsibility:  
  • The investigation implies that Telegram may be held responsible for illegal activities conducted on its platform, potentially challenging the "safe harbor" protections for intermediaries. 
• Compliance with Indian Law:  
  • The investigation suggests that Telegram's operations in India are under scrutiny for compliance with Indian laws and regulations. 
• Potential Outcomes:  
  • Depending on the findings, potential outcomes could include:  
    • Directives for enhanced content moderation  
    • Requirements for greater cooperation with law enforcement  
    • Penalties for non-compliance with Indian regulations 
    • In extreme cases, restrictions on Telegram's operations in India 
• Data Access and Privacy Implications:  
  • The investigation may involve requests for user data, potentially conflicting with Telegram's privacy policies and encryption practices. 
• Jurisdictional Considerations:  
  • As Telegram is a global company without a physical presence in India, the investigation may face jurisdictional challenges in enforcement. 

How have Different Jurisdictions Addressed Digital Platform Regulation and Liability? 

• Yahoo! Inc. Case in France (2000):  
  • A French court ordered Yahoo! Inc. to block French users from accessing Nazi memorabilia auctions on its U.S.-based website. 
  • This case represents an early instance of direct content regulation by a court in a liberal democracy. 
• Germany's Action Against Telegram (2022):  
  • Germany reported that Telegram complied with a request to remove 64 channels. 
  • These channels potentially breached German hate speech laws. 
• European Union Regulations:  
  • The Digital Services Act (DSA) was passed in 2024. 
  • It represents the EU's latest attempt to regulate big-tech excesses. 
  • EU law prohibits requiring platforms to monitor or spy on their users. 
• India's IT Rules (2023):  
  • New IT Rules were implemented in India in 2023. 
  • These rules mandate specific terms of service for entities operating in India. 
  • Requirements include submitting transparency reports and designating a compliance officer.
  • The Indian government is investigating Telegram for potential use in illegal activities like extortion and gambling.

Conclusion

As the internet changes, there’s growing tension between controlling online content and protecting free speech. The arrest of Durov might hint at a trend where governments impose stricter rules on digital platforms. This could lead to more platforms using encryption to protect user data and more negotiations between these platforms and governments. Going forward, it will be important to strike a balance between stopping online harm and protecting people’s digital rights. This balance will impact how platforms operate, how private user data is, and how the internet is managed globally.