Image generated using ChatGPT to represent Fair Use and Privacy in the context of Messaging Platoforms

Messaging platforms should benefit from a “fair use” and “privacy” law

The true, the bad and the ugly about messaging and social platforms

The sudden arrest of Telegram Messenger CEO, Pavel Durov, raises an important debate around freedom of speech and the need to adapt our laws to enable information at a global level to flow seamlessly and without censorship. For someone in technology who built a messaging app and witnessed the impact communication tools can have on democracy and our society, I urge global politicians and law makers to educate themselves on the topic and to work towards implementing a global framework and updated attitude toward these ubiquitous tools.

Messaging platforms should not be responsible for the content and messages that are exchanged through their tools.

Messaging platforms should benefit similar laws as the “fair use” in the context of copyright. For example, copyright law does not specify any use of copyrighted material without permission is considered copyright infringement. Any time you use copyrighted content without explicit permission from the right owner, the platform is not exposed, you expose yourself to a potential copyright lawsuit. For example, when you post a copyrighted content without permission from the right owner on YouTube, you are the one being exposed, potentially the one who will have to deal with the consequences. Youtube can decide to take it down immediately without suffering the burden of any litigation, and it remains their call to do so.

The reality is that messaging and social media applications wield considerable power and influence. It’s no surprise that apps like Skype and WhatsApp were acquired for billions of dollars. Communication networks are powerful tools that every government would like to control or access.

I know this first-hand. I founded FireChat, a peer-to-peer mesh messaging application I created ten years ago. FireChat served as an uncensored and unmonitored communication channel for protesters during the Umbrella Movement in Hong Kong, the Sunflower Movement in Taiwan in 2014, and the parliamentary elections in Venezuela the following year. We all remember the role Facebook and Messenger played during the Arab Spring; similarly, I recall when Telegram halted group chats of students protesting against the regime in Iran.

To gain control of over-the-top communications networks, governments use various techniques when they cannot gain control through acquisitions from cooperative organizations, court rulings or via backdoors. Telecom companies are regulated and responsible for the phone numbers they issue and must cooperate with authorities if fraud or abuse is committed using these valuable digital resources.

I ran telecom companies in the past and had to testify 13 years later for a request of identity for a phone number that had been used in a fraud in Switzerland.

The first thing governments will do if the owner or main administrator of an important platform is not cooperating is to explain directly or indirectly (through friendly news outlets or publications) how their tool is being used for illegal activity. Often, these intimidation tactics succeed. If they don’t, and time is pressing, arresting the person who controls the platform becomes an option. Another intimidation tactic is to launch a DDoS attack on the platform or to hack public groups in public chats, such as by trolling users.

FireChat had to withstand a 400-Gigabit DDoS attack back in 2014 during the Umbrella Movement in Hong Kong. At the time, it was the largest DDoS attack ever recorded. I remember the data center in San Francisco having to blackout the IP of our servers to keep operating.

While illegal activity on messaging platforms is horrible, these platforms play a critical role in free speech and upholding human and political rights. Messaging platforms are neutral instruments that can be used in various ways depending on the intent of the user.

I used this analogy in the past to explain the sensitivity of messaging tools by comparing them to utensils like a fork and a knife. “You can eat your meal with a knife and a fork. You can also stick them in the eye of your neighbor…”

Below is a quick draft of a possible law to protect messaging platforms and ensure the preservation of freedom of speech and innovation globally. I used the help of ChatGPT to get a quick draft.

Global Fair Use and Privacy Law for Digital Messaging Platforms

Section 1: Definitions

• “Messaging Platforms”: Refers to any digital platform enabling private, public, or semi-public communication between users, including text, images, videos, audio, and other multimedia content.
• “Fair Use”: Refers to the limited use of copyrighted content without the need for permission from the copyright owner, primarily for purposes such as commentary, criticism, news reporting, education, and research, subject to the conditions outlined in this law.
• “Privacy”: Private communications should be excluded from complying with any form of law as long as their access is willingly limited to a defined set of people.

Section 2: Scope of Application

• This law applies globally to all digital messaging platforms, encompassing public, and semi-public communication. Private messages, in the context of maintaining privacy, should stay out of reach given the private nature of communications.
• All types of content exchanged on these platforms, including text, images, videos, audio, and other multimedia formats, are subject to the provisions of this law.

Section 3: User Responsibilities

• Users may utilize content shared within messaging platforms under fair use principles, provided the use is for commentary, criticism, news reporting, education, research, or other similar purposes.
• If an original content creator explicitly requests the removal of their content or objects to its use, users are required to cease further use and, where possible, delete the content from the messaging platform.
• Users are prohibited from using any content that harms under-aged individuals or infringes upon personal liberties under the guise of fair use. Such content is not protected under this law.

Section 4: Platform Responsibilities

• Messaging platforms must provide mechanisms for notifying users if right owners claim their content is not used under fair use, where technically feasible.
• Upon receiving a legitimate request from local authorities or content owners to remove content used under fair use, platforms must make best efforts to remove the content, taking into account technical limitations.
• Platforms are required to collaborate with content owners and local authorities in investigating and addressing misuse of content but are not liable for user actions unless there is a failure to act where technically possible on legitimate removal requests.
• Private communications in the context of enabling privacy, as defined above, are excluded from this law.

Section 5: Enforcement and Penalties

• Violations of this law, particularly concerning content that harms minors or infringes upon personal liberties, will be subject to penalties under local and international laws.
• Users found in violation of these provisions may face account suspension, fines, or legal action depending on the severity of the breach.
• Messaging platforms that fail to comply with the requirements to notify or remove content upon legitimate request, where and when technically feasible, may also face regulatory action, including fines and operational restrictions.

Section 6: International Coordination

• Given the global nature of digital messaging platforms, this law encourages international cooperation in enforcement and the development of shared standards for implementing fair use and maintain privacy across jurisdictions.
• Messaging platforms are encouraged to adopt global best practices in implementing fair use notifications, content removal, and user education.

Section 7: Exemptions and Limitations

• Content exempt from fair use includes any material that:

1. Harms or exploits under-aged individuals, children, or minors.
2. Violates personal liberties, including but not limited to privacy rights, freedom of expression, and protection from harassment.
3. Is used in a manner that conflicts with the original purpose of fair use and privacy as defined in this law.

This draft law establishes a framework that balances the need to protect intellectual property and privacy while enabling the fair use of content and encryption within the context of messaging platforms.

I reserve the right to bring future edits to this post as new ideas, research and collaboration with other parties may bring light on new options and bring improvements to this draft.

I am very curious to receive your comments 🙂