La responsabilità delle piattaforme digitali nei confronti dei contenuti illegali: dal caso Telegram al Digital Services Act

The analysis builds on the recent arrest of Telegram founder Pavel Durov to illustrate the main responsibilities and obligations of digital platforms regarding illegal content disseminated by their users. Building on early U.S. and European regulations on the immunity of digital intermediaries for illegal content, the main changes introduced in this regard by the Digital Services Act are outlined. The DSA reaffirms the principle of immunity, but contains provisions implying increased accountability of intermediaries. Based on the analysis of certain DSA provisions, some conclusions are drawn about Telegram’s obligations and responsibilities with respect to illegal and harmful content. First, Telegram can be held liable for illegal content of which it has knowledge, also as a consequence of reports transmitted by national competent authorities or users, unless it takes action to remove it. Secondly, Telegram is required to respond to requests to remove content or provide information forwarded by national authorities in accordance with the Digital Services Act, or it may be sanctioned. On the other side, as it has not been designated as a VLOP by the European Commission, Telegram is not currently subject to a general obligation to counter illegal or harmful content (outside of sector-specific regulations). A future designation as such could, however, prompt the EC to require certain adjustments under the systemic risks mitigation obligations, for instance regarding the functioning of public groups and resources dedicated to moderation.