Public or Private Communication? Categorising WhatsApp’s and Telegram’s Group Chat and Channel Functionalities under the DSA

Abstract

Many messaging apps provide functionalities for chat groups and channels. These functionalities are used to share illegal and harmful content. To determine how the DSA’s intermediary liability regimes and due diligence obligations apply to group chat and channels, it is necessary to categorise them in terms of the DSA’s intermediary services types. This paper analyses WhatsApp and Telegram as case studies and asks two questions: First, are WhatsApp’s and Telegram’s group chat and channel functionalities mere conduit, caching, or hosting services? Second, are WhatsApp and Telegram's functionalities that qualify as hosting services also online platform services?

The paper finds that WhatsApp group chats are mere conduit or sometimes caching services but never hosting services. Therefore, WhatsApp group chats cannot be online platform services. To the contrary, WhatsApp channels are hosting services and also qualify as online platform services. Telegram’s analysis concerns four parts of the app: private and public group chats and private and public channels. All these functionalities on Telegram are hosting services. Furthermore, public group chats and channels on Telegram also qualify as online platform services. However, private chat groups and channels on Telegram are not online platform services.

The paper also reflects on the relevance of three specific features that give otherwise private functionalities of messaging apps a semi-public character. The paper concludes that these three specific features do not turn otherwise private chat groups or channels into online platforms, despite giving them a semi-public character. Consequently, the paper reflects on the DSA’s gap regarding online spaces on messaging apps that do not qualify as online platform services, but have a semi-public character and, while being formally private, might lead to public harms. Further research should reflect on possible solutions to the DSA’s gap regarding private group chats and channels on messaging apps with a semi-public character. The conclusion emphasises that any solution should ensure that truly private messaging functionalities will not qualify as online platform services, and are not subjected to content moderation or other third-party interventions, because of the democratic importance of confidentiality of communications.