An intermediary like a Facebook or a Twitter does not create and own content unlike a broadcaster which produces and owns content.
China’s ByteDance-owned social media platform, TikTok has landed itself in a soup. Having lost protection — an intermediary — under Section 79 of the Information Technology Act, the platform can in future be hauled up by the government if any content on its site is found to be in violation of the law. TikTok, which is popular with subscribers who post short videos, recently asked a domestic social media platform ShareChat to remove certain content on which it claimed exclusive ownership. The development prompted ShareChat to write to the ministry of electronics and IT (Meity) enquiring whether TikTok’s status was one of an intermediary or a broadcaster.
An intermediary like a Facebook or a Twitter does not create and own content unlike a broadcaster which produces and owns content. TikTok has said that it is an intermediary but added that it also enters into contracts with some content creators who create exclusive content for it. It was some such content which it asked ShareChat to remove. However, legal experts are not convinced. They believe that TikTok has exposed itself to a situation where if tomorrow any content on its platform is found to be in violation of the law, it cannot claim immunity from being prosecuted under the protection granted to intermediaries under Section 79 of the IT Act.
According to cyber law expert, Pawan Duggal, intermediaries are liable to the extent the needed to have conducted the necessary due diligence for the content which goes on their sites. If there is any content in violation of law, the government apart from directing them to remove such content also questions them on the nature of due diligence conducted before putting up such content. If the due diligence process is found to be satisfactory no further action is taken against them. However, if a platform gets into an exclusive content production arrangement with any party, it can be prosecuted if there is a violation of the law; the matter would not be limited to the quality of due diligence. As such, TikTok can be held liable for any such content along with the content creator. TikTok has landed itself in such situation, according to Duggal.
According to Duggal, if any platform enters into exclusive arrangements with creators, it will still be an intermediary since the content is owned by creators. “That said the company has no legal basis to ask any other entity to remove the content as an intermediary, even on behalf of the creators. Any such act could strip the company of statutory immunity as an intermediary and the company could be made liable for third party data,” Duggal told FE.
In case the content is fully owned by the said platform, it is no longer an intermediary. “The company can be prosecuted for non-compliance of existing norms by the government as it will act as a broadcaster,” Duggal added.
A spokesperson for TikTok said the company welcomes Indian creators to be part of a safe and positive environment that upholds users’ content and intellectual property rights. “The platform does not exercise editorial control over users’ content, which is produced entirely under users’ sole discretion. However, TikTok may enter into mutual contractual agreement with some creators, where TikTok may enjoy certain exclusivity rights over the content of these creators. In this regard, TikTok has undertaken legal action as part of its commitment to protect its users from copyright infringement,” the company said.