New Delhi: TikTok’s recent takedown notice to ShareChat to remove more than 100 videos, claiming exclusive rights over them, may raise legal questions as it contradicts their claims during the Madras High Court hearing in April that TikTok is an intermediary and cannot be banned for third-party content.
The government, according to a 27 August report in The Economic Times, plans to ask TikTok how its intermediary status is consistent with its claims that it owns content.
ShareChat, too, has raised an objection on the matter with MEITY (Ministry of Electronics and Information Technology).
Section 79-II of the Information Technology Act 2000 (after an amendment in 2008) exempts intermediaries from liability for any third party content shared on their platform. The Act provides “safe harbour protection" to intermediaries as long as they only play the role of a facilitator and are not involved in the creation or modification of the content in any manner.
User-generated content on any social media platform is treated as third party content. Even if it is first published on your platform, it still doesn’t give you exclusive rights over it, points out Pavan Duggal, advocate and leading cyberlaw expert.
“I think TikTok will have to make up its mind which bucket it wants to come in. If it wants to be an intermediary, it must fulfill the requirements of section 79-II of the Indian IT Act that protects it from liability. But if it seeks exclusive right over the content, it loses the immunity as an intermediary," adds Duggal.
TikTok is believed to have signed exclusive contracts with a bunch of influencers for the videos it asked ShareChat to remove, according to a person in know of the matter but did not wish to be named.
In an official statement to Mint, TikTok spokesperson said the platform does not exercise editorial control over users' content, which is produced entirely under users' sole discretion. However, they may enter into mutual contractual agreement with some creators with exclusivity rights over the content. In this regard, TikTok has undertaken legal action as part of its commitment to protect its users from copyright infringement.
Asking other social media platforms to take down user generated content can also be called an overreach as it is up to the user where they want to share and upload the content, unless the social media platform is involved in the content creation process or has signed a contract with the user.
“A social media platform can claim exclusive ownership over user generated content only if they are adding value or enhancing it in some way. Also, if social media platforms decide to pay a fraction of revenue generated to the top contributors producing very high engagement content, such content would become exclusive," says Faisal Kawoosa, founder and chief analyst, techARC.
TikTok was temporarily banned on 3 April by Madras high court, following a petition that accused the platform of propagating pornographic content and exposing children to online predators. The ban was eventually lifted on 24 April.
A subsidiary of China-based ByteDance, TikTok is immensely popular among teenagers and college students for its short music and dance videos. It claims to have 120 million monthly active users in India alone. Bengaluru-based ShareChat is popular for its regional language content, which includes videos, and has over 60 million monthly active users in India.