Article 323-3-2 of the French Penal Code allows administrators of platforms on which illegal things are happening to be sent to prison. Problem: European law, since the e-commerce Directive, confirmed by the Digital Services Act, provides for limited liability for these same acts. European law takes precedence over national law. Since Pavel Durov – founder and CEO of Telegram – was arrested and placed under judicial supervision by the Public Prosecutor’s Office of the Paris Judicial Court, platform managers around the world have been worried. Could they too be arrested while in France because dishonest people are using their networks to carry out illicit activities? Some dismiss this possibility out of hand, arguing that French law allows network managers to be put behind bars only in the most serious cases, and when they have repeatedly refused to provide information to the law. Others urge platform managers to be cautious. For example, the very serious Wired, in an article entitled « Telegram faces a problem in Europe. Other founders should be wary ». And they’re right: article 323-3-2 of the French Penal Code, which is the legal basis for the first charge brought against Pavel Durov by France, is sufficiently vague as to concern almost all social networks or video platforms. But this article is also problematic: it applies to acts which, far from being severely punished under European law, are subject to limited liability. European law takes precedence over national law. What’s more, this provision, adopted in 2023, has not been notified to the European…
