By Bharat Kapoor, Vice President, Online Brand Protection, Authentix
The arrest of Pavel Durov, the founder-CEO of Telegram, has sparked off a wave of criticism and conspiracy theories. An official press release reveals that Pavel (now out on bail) was arrested for the purpose of questioning, as part of a judicial investigation. The judicial investigation followed a preliminary enquiry by the Public Prosecutor Office, National Jurisdiction against Organised Crime (JUNALCO), and was opened against unnamed persons on various charges. These charges included complicity in connection with multiple criminal offences, namely the possession and distribution of child pornography, the sale of narcotics, the sale and distribution of hacking tools, and “organised fraud”; money laundering; offering cryptology services without prior declaration; and non-cooperation with authorities seeking to intercept communications.
It is, of course, rare for owners and operators of online platforms to face such criminal action — as opposed to users on the platform engaged in criminal activity. The few examples one can think of would only encompass outrightly rogue platforms whose primary intent was to facilitate illicit commerce, with the active approval and encouragement of its operators. Two notable cases that come to mind are Ross Ulbricht of the Silk Road marketplace (convicted by a Manhattan federal court and sentenced to life imprisonment) or Kim Dotcom of Megaupload (whose extradition order to the US was signed by New Zealand’s Justice minister in August). An interesting facet of those two cases is the role of IP infringement. In the former case, Ulbricht was convicted on seven counts (concerning drug trafficking, trafficking in fraudulent documents, computer hacking services and malware, money laundering and “continuing criminal enterprise”). However, a statement from the prosecutor’s office mentioned that Silk Road was also involved in disseminating “pirated media content”. In the case of Mega Upload, the case against Dotcom was almost entirely centered around copyright piracy, and the Court of Appeal in New Zealand found that Kim Dotcom could be extradited on that basis.
It is no one’s case that Durov and Telegram fall in the same class as the charges raised against Ulbricht/Silk Road and Dotcom/Mega Upload. In fact, Telegram does have a mechanism through which one can report illicit activity, however, the platform has been non-compliant to takedown requests placed by IP owners. In comparison, other social media platforms are known to have more accessible channels to address the concerns of IP owners. Since the French authorities still found it worth investigating Telegram and arresting Durov, it must be asked why IP infringement was missing from the list of allegations, given the alleged high frequency of pirated content on Telegram, as well as the reported presence of counterfeit sellers. In recent experience, about 20 percent of IP complaints that Authentix has filed with Telegram have been taken down. Even there, the response time has been slower than other platforms, which vitiates the ultimate goal of reducing counterfeit traffic. Further, unlike many other marketplaces, Telegram lacks a separate channel to fast-track complaints involving particularly blatant violations — such as outright counterfeits, or cases where an IP assessment is not warranted to determine if a sale is illegal, such as public sales of restricted goods like prescription medicines, alcohol and certain types of chemicals.
Objectively, there have been examples, notably in India, where Telegram has shared the details of users engaged in copyright piracy which was beneficial to investigation and enforcement. Yet, many of these instances only took place after a court order, and after Telegram had contested such claims on grounds of privacy and jurisdiction. Further, a system was introduced where one could open a Telegram account without a SIM card — which pirates and counterfeiters and other rogue actors are allegedly using to seek anonymity. In the end, what we believe Telegram should do is institute a formal, transparent pro-active mechanism through which IP infringements can be addressed; a similar mechanism through which sales involving public policy violations (independent of IP) can be addressed; and a system through which ads (often the first point of contact between a counterfeiter and a user) can be better monitored.
Looking ahead, it is likely that French authorities will continue and try to pressure Telegram to improve its compliance mechanisms, rather than determinedly seek to prosecute Durov personally, with the goal that Telegram will relent and agree to make these changes. Intriguingly, Telegram just recently changed the language on its FAQ page, from “All Telegram chats and group chats are private amongst their participants. We do not process any requests related to them” to now read “All Telegram apps have ‘Report’ buttons that let you flag illegal content for our moderators — in just a few taps.” Yet, if IP infringement continues to lag and Telegram does not make a serious effort to improve compliance, copyright and brand owners will feel justified in feeling hard done by.
About Authentix Online Brand Protection
Authentix provides some of the world’s most recognizable brands with sophisticated online brand protection tools and services to address a broad range of online infringement and counterfeit risks. From global online surveillance and enforcement, online investigations and site takedowns, target verification, and even offline investigations, Authentix helps major brands proactively reduce the threat of counterfeit products being sold online. Our online brand protection solutions combine cutting-edge technological tools and expert analysis to reduce infringements for our clients on online marketplaces, social media platforms, and websites by up to 90%.
* Image from artist Nick Lubushko