The new contours of complicity in the light of the SkyECC and EncroChat cases

The personal implication of the founders of encrypted messaging systems as accomplices to offences committed by their users outlines the contours of a dangerous new case law that undermines the French and European principles of criminal law.

The accomplice, a secondary character in films and crime fiction, is at the forefront of a new body of case law, initiated by the specialised inter-regional courts (JIRS) of Paris and Lille, as well as the national court for combating organised crime (JUNALCO), aimed at extending to the extreme the contours of the repression of the provision of means. Regularly denounced by legal scholars (1), the trend in case law to stretch the notion of complicity even further reached its climax with the Sky ECC and Encrochat cases, in which the founders of these encrypted messaging applications were prosecuted as accomplices to offences committed by some of the users of these applications. A further step was taken with the indictment of the founder of Telegram who, on the pretext of the same reasoning and despite significant factual differences, is presented as the accomplice of nearly one billion users.

Taken from the Latin complicis, literally meaning ‘united’ or ‘associated’, the term accomplice has two distinct meanings in criminal law: accomplice by aid or assistance, and accomplice by instigation or provocation (2). Among the various types of complicity set out in the abundant case law in this area is that of the provision of means. This is the case of the accomplice who provides the weapons to be used in a burglary (3), the accomplice who provides the lighter needed to start an arson attack (4), or the seller of falsified SIM cards used in a telephone scam (5).

This accomplice, the supplier of the means, was already included in the old Penal Code of 1810, which provided in Article 60 that accomplices were ‘those who have procured weapons, instruments or any other means used in the action, knowing that they were to be used in it’. And it is on this last phrase, ‘knowing that they were to be used’ that positive law has been built. It is generally accepted that an accomplice is only an accessory if he or she has acted with full knowledge of the facts, through a prior agreement with the perpetrator of the principal offence (6) and the Criminal Chamber reiterates this as often as necessary, in an often-repeated reasoning: ‘it is sufficient that he (the accomplice) has knowledge that the principal perpetrators are committing or are going to commit such a crime and that, by his aid or assistance, he facilitates its preparation or commission ’ (7).

As is well known, the concept of accomplice is regularly extended by the case law, which has in particular established the concepts of complicity in an unintentional offence (8) and complicity through recklessness or negligence (9), or even complicity by reason of an action subsequent to the offence (10). However, in the latter case, the Criminal Chamber points out that an act subsequent to the offence is punishable as an accessory only if ‘it results from a prior agreement (between the accomplice and the perpetrator)’ (11).

With the SkyECC and EncroChat cases, the judges in charge of these proceedings seem to want to expand the boundaries of the notion of complicity even further with a particularly dangerous syllogism: the founders of these encrypted messaging systems would, by their very nature, necessarily be complicit in all the actions of their users. This line of reasoning is based on two inaccurate assumptions: firstly, that every user of an encrypted messaging system is a potential delinquent or criminal, and secondly, that such tools were designed to encourage the commission of offences.

It should be remembered that encrypted messaging systems have been widely democratised. In fact, the President of the French Republic and his ministers are avowed users of the Olvid application, which also uses end-to-end encryption. Such applications are by no means the prerogative of criminals, unless we accept a presumption of guilt against anyone wishing to maintain confidentiality. This line of reasoning has already been rejected by the European Court of Human Rights (ECtHR), which considers that ‘the mere fact of downloading or using an encrypted means of communication or of resorting to any other form of protection of the private nature of the messages exchanged cannot of itself constitute an element capable of convincing an objective observer that an illegal or criminal activity is involved’ (12). It has never been demonstrated, or even alleged, that all, or even a simple majority, of the 300,000 and 60,000 users of SkyECC and EncroChat would be criminals. This is all the more true for Telegram, which, as mentioned above, has nearly one billion users and offers services other than encrypted messaging.

Above all, given the number of users of the three messaging services, it is materially impossible for their founders to have been aware of the possible criminal plans of each of these users. Consequently, unless European case law and the concept of intentional element are ignored, it is impossible to consider that the founders of such messaging systems would be accomplices to the offences committed by their users, on the sole pretext that they provided the application used for encrypted exchanges.

A parallel should be drawn: is the car manufacturer accused of having sold the vehicle used in a go-fast on the basis of complicity in the provision of means? Or an ammunition manufacturer for enabling a murder to be carried out? ‘He who invented the ship, also invented the shipwreck’, as Lao Tzu teaches us, and every achievement, diverted from its initial purpose, is likely to represent a danger, even if it is a simple encrypted messaging service. In reality, this new trend in case law is tending towards the pure and simple abandonment of the only remaining safeguards against complicity, namely the concepts of intentional element and prior knowledge of the offence, for the founders of encrypted messaging services. It should be emphasised that the compatibility of such reasoning with our constitutional principles of personal criminal liability (13) and criminal legality is far from certain.

Until now, it was accepted, under Articles 6 et seq. of Law 2004-575 of 21 June 2004 on confidence in the digital economy, that a host of unlawful content could be held civilly liable if its cooperation was deemed insufficient by the judicial authority. Here again, we are witnessing a shift, without any legal basis, towards a system of criminal liability, in which the natural persons of the founders are prosecuted instead of the companies. An amendment was passed in the Senate as part of the bill on drug trafficking, aimed at forcing such messaging services to cooperate more closely with the secret services when it comes to large-scale trafficking. Such a discussion and, more broadly, a debate on the regulation of such messaging services is a normal part of our democratic institutions.

On the other hand, it is not for judges to twist the concept of complicity in order, ultimately, to incriminate the founders of encrypted messaging systems, at the risk of making this new case law a violation of national and European law.

Read the article in French here.

1. C. Girault, Le relâchement du lien de concertation entre l'auteur principal et le complice, D. 2008. 1714.

2. C. pén. art. 121-6 and 121-7.

3. Crim. 27 May 1963.

4. Crim. 12 May 1993, no. 92-85.076.

5. Crim. 14 Nov. 1994, no. 94-81.214.

6. É. Fortis, Des conditions et modes de la complicité, RSC 2006. 596 .

7. Crim. 7 sept. 2021, n° 19-87.367, Dalloz actualité, 13 sept. 2021, obs. E. Daoud; D. 2022. 45 , note L. Saenko ; JA 2021, n° 648, p. 11, obs. X. Delpech; AJ pénal 2021. 469, note J. Lasserre Capdeville; Rev. Sociétés 2022. 102, note H. Matsopoulou; RSC 2021. 827, obs. Y. Mayaud .

8. Crim. 6 June 2000, n° 99-85.937, D. 2000. 222; RSC 2000. 827, obs. Y. Mayaud; ibid. 2001. 152, obs. B. Bouloc .

9. Crim. 31 Jan. 2007, no. 05-85.886.

10. Crim. 19 June 2024, no. 23-84.759.

11. Idem.

12. ECHR 20 July 2021, Akgün v Turkey, no. 19699/18, § 173.

13. Cons. const. 16 June 1999, no. 99-411 DC, § 7, AJDA 1999. 736; ibid. 694, note J.-E. Schoettl; D. 1999. 589 , note Y. Mayaud; ibid. 2000. 113, obs. G. Roujou de Boubée; ibid. 197, obs. S. Sciortino-Bayart .