The government is planning to impose higher levels of accountability on social media platforms as it grapples with the problem of bringing about order in a fast-growing industry where regulations are still nebulous.
One important measure it is considering is to tell social media brands such as TikTok, Facebook and ShareChat that they will be legally liable for content that they have had a hand in either creating or curating.
Which means that even if there is the slightest fingerprint of a social media company on a piece of content, platforms cannot claim to be mere intermediaries and disclaim responsibility for consequences.
“Social media companies can’t bring out original content or they should take responsibility for them,” said a senior government source, explaining the centre’s thinking on the issue.
The explosion increase in user-generated content, especially short videos, has become a regulation headache for the authorities. When user-generated social media content crosses the bounds of decency, spreads hate or propagates fake news, intermediary status also confers legal immunity because the platforms can claim they do not know what the user is putting up unless an individual or software raises a red flag.
While in the case of traditional media such as newspapers and television there is editorial control over what is printed or goes on air, social media is still a free-for-all world. Social media companies have so far argued that they are only intermediaries, and users generate content over which they have no control. But in practice, it is not all that clear-cut.
“Safe harbour is for non-curated content,” said Subho Ray, President of Internet and Mobile Association of India (IAMAI). “Safe harbour is not applicable to platform, but to the piece of content. If the content is curated by a company they can’t claim safe harbour because if you are curating it or have exclusive rights over it, you have seen it.”
The government is also considering to stop intermediaries from having exclusive user-generated content on the platform.
“Discussions are on, but there is no decision on that yet,” said another source.
Sunil Abraham, Executive Director of Bangalore-based research organisation, Centre for Internet and Society, said, “An intermediary is providing a two-sided market. If they participate in that market there could be competition harms.”
For context, TikTok owned by Chinese internet conglomerate ByteDance sent a notice to ShareChat to take down content for which the former had signed exclusive rights. ShareChat took it off, but also sent a letter to Ajay Sawhney, Secretary of Ministry of Electronics and Information Technology (Meity), on August 23, copy of which is with Moneycontrol, asking for clarity on laws governing intermediaries.
“Instead of acting as intermediaries (that are protected by safe harbour liability exemptions), such exclusivity deals result in these platforms being considered broadcasters or streaming services (and therefore directly liable for the nature of the content distributed by them),” Berges Y. Malu, Head of Public Policy and Policy Communications at Mohalla Technology Pvt. Ltd. (owners of ShareChat) wrote in the letter.
TikTok engages with users who can promote the platform and teach other users on how use it. It also encourages and incentivises content creation by some of these users, but does not exercise any editorial control over content creation. “TikTok may enter into a mutual contractual agreement with some creators, where TikTok may enjoy certain exclusivity rights over the content of these creators,” said a TikTok spokesperson commenting of ShareChat sending a letter to the government. “In this regard, TikTok has undertaken legal action as part of its commitment to protect its users from copyright infringement.”
But, there is a catch there. “They can claim all rights. Because the user had granted such a liberal license. But the user as the copyright holder can license it again and again to multiple parties because these licenses are non-exclusive,” said Abraham.