There was a recent fracas over the social media company locking Union Law Minister Ravi Shankar Prasad’s account over a copyright complaint. Legal regimes worldwide offer safe harbour protection to social media platforms, but the new Intermediary Guidelines of 2021 impose liability on them if they do not comply with the protections afforded to owners under the Copyright Act and the IT Act in India, write PRAJJWAL KUSHWAHA AND KANISHK GARG.
THE recent action taken by Twitter against Union Law Minister Ravi Shankar Prasad’s account has rekindled debate on the company’s power to lock or suspend a user’s account.
In response to a copyright complaint sent on behalf of Sony Music Entertainment by the International Federation of the Phonographic Industry, Twitter withheld a tweet posted by Prasad in 2017. Additionally, his account was locked and he was denied access to it for over an hour on June 25, 2021.
Incidentally, the tweet of Prasad that led to him getting blocked temporarily related to music director AR Rahman’s famous song “Maa Tujhe Salaam”, which was found in violation of Twitter’s copyright policy.
Twitter has many prior instances of locking and suspending individual users’ accounts for what it deems are violations of its user agreement and its copyright policy.
The locking of Prasad’s account over a copyright complaint warrants scrutiny into Twitter’s copyright policy.
As per its copyright policy available on its website, Twitter reviews a complaint filed by a copyright owner and removes or disables access to the tweet if the complaint is valid and accurate. It then provides the affected user a copy of the complaint and instructions on applying for a reinstatement of the withheld tweet. This is done by filing a counter-notice if the user provides a statement in good faith that the removal was a consequence of a mistake or misidentification. In such a case, the user who filed the original complaint will have ten days to notify Twitter that he seeks a court order to prevent further infringement, failing which Twitter may restore access to the removed tweet.
Twitter may lock and suspend user accounts in cases where there are repeat offences.
It remains unclear whether it received complaints against Prasad’s Twitter account in the past and whether it chose to lock his account after receiving the first complaint.
Legal regimes worldwide offer safe harbour protection to social media platforms, which is to say that Twitter would be free from liability if it did not have an editorial role in publishing the infringing content. However, Twitter must remove such content from its website when any violation is brought to its notice.
Takedown complaints under the American Digital Millennium Copyright Act, 1998 (DMCA) and withholding posts on social media are relatively common in countries where media companies such as Twitter, Facebook and YouTube operate.
The newly applicable Intermediary Guidelines of 2021, like the American DMCA, impose liability on social media platforms if they do not comply with the protections afforded to owners under the Copyright Act and the IT Act in India.
In a series of tweets posted by Prasad after regaining access to his Twitter account, he claimed: “Twitter’s actions were in gross violation of Rule 4(8) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 where they failed to provide me any prior notice before denying me access to my own account.”
This rule requires Twitter to notify and explain action taken to withhold a tweet. As an industry practice, notification and takedown of content occur almost simultaneously, as these are all automated steps taken by algorithms. The Rules further require intermediaries to provide an “adequate and reasonable opportunity to dispute the action being taken … and request for the reinstatement of access to such information, which may be decided within a reasonable time”.
Interestingly, these Rules deal with removing specific posts and do not envisage a situation where a social media platform locks a user’s account due to repeated copyright violations. Whether a social media company should have the power to lock or suspend individual user accounts is an important question and the government’s stance on it is unclear.
(Prajjwal Kushwaha and Kanishk Garg are final-year law students at the National University of Juridical Sciences, Kolkata. The views expressed are personal.)