France uses tough, untested cybercrime law to target Telegram’s Durov

PARIS – When French prosecutors

took aim at Telegram chief executive Pavel Durov

, they had a trump card to wield – a tough new law with no international equivalent that criminalises tech titans whose platforms allow illegal products or activities.

The so-called Lopmi law, enacted in January 2023, has placed France at the forefront of a group of nations taking a sterner stance on crime-ridden websites. But the law is so recent that prosecutors have yet to secure a conviction.

With the law still untested in court, France’s pioneering push to prosecute figures such as Durov could backfire if its judges balk at penalising tech bosses for alleged criminality on their platforms.

A French judge placed Durov under formal investigation in August, charging him with various crimes, including the 2023 offence: “Complicity in the administration of an online platform to allow an illicit transaction, in an organised gang”, which carries a maximum 10-year sentence and a €500,000 (S$720,000) fine.

Being under formal investigation does not imply guilt or necessarily lead to trial, but indicates that judges think there is enough evidence to proceed with the probe. Investigations can last years before being sent to trial or dropped.

Durov, out on bail, denies Telegram was an “anarchic paradise”. Telegram has said it “abides by EU (European Union) laws”, and that it is “absurd to claim that a platform or its owner are responsible for abuse of that platform”.

In a radio interview last week, Paris prosecutor Laure Beccuau hailed the 2023 law as a powerful tool for battling organised crime groups who are increasingly operating online. 

The law appears to be unique. Eight lawyers and academics told Reuters that they were unaware of any other country with a similar statute.

“There is no crime in US law directly analogous to that and none that I’m aware of in the Western world,” said Mr Adam Hickey, a former US deputy assistant attorney-general who established the Department of Justice’s (DOJ) national security cyber programme. 

Mr Hickey, now at US law firm Mayer Brown, said US prosecutors could charge a tech boss as a “co-conspirator or an aider and abettor of the crimes committed by users”, but only if there was evidence the “operator intends that its users engage in, and himself facilitates, criminal activities”.

He cited the 2015 conviction of Ross Ulbricht, whose Silk Road website hosted drug sales. US prosecutors argued Ulbricht “deliberately operated Silk Road as an online criminal marketplace... outside the reach of law enforcement”, according to the DOJ. Ulbricht got a life sentence.

Mr Timothy Howard, a former US federal prosecutor who put Ulbricht behind bars, was “sceptical” Durov could be convicted in the US without proof he knew about the crimes on Telegram and actively facilitated them – especially given Telegram’s vast, mainly law-abiding user base. 

“Coming from my experience of the US legal system,” he said, the French law appears “an aggressive theory”.

French cyberlaw professor Michel Sejean said the toughened legislation in France came after the authorities grew exasperated with companies such as Telegram.

“It’s not a nuclear weapon,” he said. “It’s a weapon to prevent you from being impotent when faced with platforms that don’t cooperate.”

Tougher laws

The 2023 law traces its origins to a 2020 French Interior Ministry White Paper, which called for major investment in technology to tackle growing cyber threats.

It was followed by a similar law in November 2023, which included a measure for the real-time geolocation of people suspected of serious crimes by remotely activating their devices. A proposal to turn on their devices’ cameras and mouthpieces so that investigators could watch or listen in was shot down by France’s Constitutional Council.

These new laws have given France some of the world's toughest tools for tackling cybercrime, with the proof being the arrest of Durov on French soil, said Mr Sadry Porlon, a French lawyer specialising in communication technology law.

Cybercrime professor Tom Holt, from Michigan State University, said Lopmi “is a potentially powerful and effective tool if used properly”, particularly in probes into child sexual abuse images, credit card trafficking and distributed denial-of-service attacks, which target businesses or governments.

Armed with fresh legislative powers, the ambitious J3 cybercrime unit at the Paris prosecutor’s office – which is overseeing the Durov probe – is now involved in some of France’s most high-profile cases.

In June, the J3 unit shut down Coco, an anonymised chat forum cited in more than 23,000 legal proceedings since 2021 for crimes such as prostitution, rape and homicide.

Coco played a central role in a current trial that has shocked France. 

Dominique Pelicot, 71, is

accused of recruiting dozens of men

on Coco to rape his wife, whom he had knocked out with drugs. Pelicot on Sept 17 testified in court, admitting to his guilt and asking his family for forgiveness. Meanwhile, 50 other men are also on trial for rape.

Isaac Steidel, Coco’s owner, is suspected of a similar crime as Durov: “Provision of an online platform to allow an illicit transaction by an organised gang.”

Mr Julien Zanatta, Steidel’s lawyer, declined to comment. REUTERS