French defense lawyers are criticizing the legal argument for prosecuting Telegram CEO Pavel Durov after he was arrested and then released on 5 million euros ($5.5 million) bail and forbidden from leaving France.
Maud Marian, a Paris-based defense lawyer, said the Durov case is the latest example of French prosecutors seeking to curb freedom of speech and target encrypted networks.
One preliminary charge accuses Durov of “complicity in managing an online platform to allow illicit transactions by an organized group,” a crime that can carry a prison sentence of up to 10 years and a fine of up to 500 million euros ($556 million).
“In France, they can do some incoherent things, meaning they can sue the little fish and let the big one fly,” Marian said. “The prosecutor has total discretion about who he is suing. They have indicted Mr. Durov himself, and not the company, which is totally stupid, because Durov cannot do what the company is doing.”
She said she believes the prosecutors brought the charges against Durov in a deliberate attempt to put pressure on him to make him compliant.
“They’re doing this with Musk, they they have done it with Zuckerberg. They have done it with Rumble, now it’s Telegram, and I can see that it’s all the same, the same way to act. They don’t want the freedom on the internet,” Marian said.
Durov’s lawyer David-Olivier Kaminski told French media that “it’s totally absurd to think that the person in charge of a social network could be implicated in criminal acts that don’t concern him, directly or indirectly.”
Robin Binsard, a lawyer who specializes in encryption cases, told The Epoch Times in an email that in France, “there are laws that protect privacy, but there is also strong pressure, particularly from investigators and the judiciary, to challenge this protection in criminal proceedings.”
Encrypted Networks
Durov is not the first executive to be arrested and charged in connection with an encryption device or app.In 2021, Thomas Herdman, a Canadian national, was extradited from Spain and charged with 22 offenses relating to the Sky ECC network. Herdman, who denies any wrongdoing, remains in prison in Paris awaiting trial.
“What appears certain to us, and this is the point which interests us as jurists, is that the Telegram affair, in the wake of other cases such as EncroChat and Sky ECC, seems to be the opportunity for a dangerous questioning of certain basic principles of French criminal law,” Binsard said. “This trend must be vigorously combated.”
Marian told The Epoch Times that in France, a person can’t be considered an accomplice if they didn’t commit a positive voluntary act.
“It’s very difficult to prove that an abstention, a refusal to do something can be a kind of complicity,” Marian said.
“The political landscape in France is worrisomely ripe for the enactment of new laws or policies that could undermine the security of encrypted products and services in the name of national security,” the report said.
But Marian said no new laws surrounding cryptology have been passed in France in recent years, and the prosecutor in the Durov case, Laure Beccuau, is not using any new legislation but trying to enforce “old laws in a new way.”
“We are slowly moving from protected freedom of speech, of privacy, to something different, a different regime,” she said. “They are using all the means they have to close the accounts, to surveil people, and so on.”
Binsard told The Epoch Times that “in principle, complicity presupposes a positive and voluntary act intended to consciously assist in the commission of a crime.”
‘Tenacious’ Prejudice Against Encryption
In an article in Le Point, Binsard and another French lawyer, Guillaume Martine, say messaging services such as WhatsApp, Signal, and Snapchat have become commonplace, but among French judges there was a “tenacious” prejudice against them.Binsard told The Epoch Times that the Durov/Telegram case is like blaming a car rental company whose vehicle is used for drug trafficking, or accusing postal executives if a pedophile sends child abuse images through the mail.
He said the prosecutors assumed Telegram’s lack of cooperation in criminal proceedings was an illegitimate obstruction and therefore an act of complicity.
“This non-cooperation occurs after the offense has been committed, it therefore does not facilitate it upstream, which is the definition of complicity,” Binsard added.
French President Emmanuel Macron, during a visit to Belgrade on Thursday, said he was unaware of plans to arrest Durov in advance and said it had been, “an independent act of French justice.”
Political Pressure
Marian said prosecutors rarely make moves or begin investigations that they know will be politically unpopular.She said the judiciary in Britain and the United States is more independent and more free from political pressure.
“In France the prosecutor can do anything, no liability, and the judges are very, very submitted to political pressure,” she said, explaining that it is not direct political pressure but more indirect.
“They depend on the President of the Republic [Macron] for nomination, for advancement of career, and they depend on their friends in the judiciary tribunal. ... It’s not well regarded when someone is very independent and does what he wants.”
Marian also said there are rarely consequences for French prosecutors who overstep the mark.
There has been no outcry in public opinion in France about the Durov case and its implications for free speech, Marian said.
“Most of the French people are not concerned. They’re not feeling concerned directly. They think, oh yes, they are criminals, okay, but we are not criminals, so no problem for us.”
