This article is written by Raghav Madan, pursuing a Diploma in Advanced Contract Drafting, Negotiation, and Dispute Resolution from Lawsikho.
Social media platforms as we all know are the pinnacle in today’s era and are widely used for diverse purposes whether its entertainment or business. Our everyday functioning revolves around social media platforms both positively and negatively. Having said that, these social media platforms also need to provide a framework of this functioning which is particularly through a policy (or an e-policy when provided electronically). A policy or an e-policy is simply a document that contains instructions that determine how work is carried out in the platform. It clearly defines modes of conduct, reflects the platform’s roles, and determines the cultural structure of a platform. It is important to note that policies differ from one platform to another. The content of a policy depends on the mission and objectives of an organization. Typically, in the social media domain, an e-policy contains answers to the questions like what is the role of a particular social media in technical terms, how are the users supposed to interact in that platform, what are the obligations of each user who is a part of that platform, what happens to the collected data of users, etc.
Before going deep into the prerequisites of drafting an e-policy, it is very important to first understand the reason behind drafting an e-policy. The main reason why we need such a policy revolves around setting out responsibilities in a written format. The responsibility to set out what are the roles of each individual connected to that platform and what are their rights and duties leading to better accountability. Further, it also aims to educate people about social media platforms in a better manner and formulate trust. It minimizes costly & protracted risks in order to maximize legal, regulatory & organizational compliance. Now that we have understood the intention behind framing these policies, we shall now discuss a few key points one should keep in mind before drafting an e-policy for social media platforms.
- The grip of diverse laws in relation to Social Media:
Logically, before drafting any legal document one needs to know the legal facets around it. Here is the list of laws from the Indian perspective that one shall have expertise in before drafting an e-policy:
- The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 is arguably the most important law in the social media industry today. It aims to empower ordinary users of social media platforms with a mechanism for redressal and timely resolution of their grievance with the help of a Grievance Redressal Officer (GRO) who should be a resident in India.
- Indian Contract Act, 1872 along with Information Technology (Amendment) Act, 2008: because these policies are broadly a contract governing the relationship between the user and the platform under Indian Contract Act, 1872 and validated under Section 10A of Information Technology (Amendment) Act, 2008.
- Intellectual Property Rights Laws for providing protection to the original creator of content and what action the creator can take in case of infringement which has been discussed are discussed later. Various legislations in this regard include The Patents Act, 1970, Copyright (Amendment) Rules, 2021, The Trade Marks Act, 1999, and Copyright Act, 1957.
- Code of Civil Procedure, 1908 for the procedure for civil disputes and resolution mechanism which forms an integral part of any contract.
- Data Protection laws as these platforms collect data worldwide and require the prior consent of the user for using the data. Although India does not have proper legislation in this regard yet, however, it is important that if the personal data is being collected from other jurisdictions, then ensuring due compliance to their data protection law is to be given high priority considering the penalties has for non-compliance.
This list is not limited and varies depending upon the nature of working of the social media platform. Further, if these platforms work in multiple jurisdictions then they are required to abide by the laws of each respective jurisdiction.
- Inclusion of Different Forms of Policies:
Each Social Media Platform shall incorporate a list of policies which could be in the form of:
a. Terms of Service
c. Business policy
A business Policy would provide information regarding the ads, branded content, commerce, community payments, etc., and how the business works (unless it is confidential information).
d. Intellectual Property policy
An Intellectual Property Policy will tend to protect the individual user and prohibit activities such as posting, sharing, or sending any content that violates or infringes someone else’s copyrights, trademarks, or other intellectual property rights.
Apart from the above-mentioned policies, any other policy may also be included provided it forms an integral part of the working of the platform.
- Drafting a provision for the applicability of the e-policy:
As we have already discussed that the Indian Contract Act, 1872 governs all agreements and contracts, including online contracts. Simply put, a contract is a legally binding agreement. The fundamentals to forming this legally binding contract are addressed in Section 10 which also states that the parties shall be identified and applied correctly.
Therefore, it is essential to provide the applicability of these e-policies. It includes:
a. Specifying the scope of jurisdiction;
b. Individuals the policy is applicable to;
c. Category or individuals it is not applicable to or any other exemptions;
d. And what are the conditions upon which it will become applicable.
It is ideal to provide this provision at the beginning of any e-policy itself and clarify as to whom this policy is relevant.
- Importance of drafting a provision governing relationship (User and Platform):
This is another important aspect of any e-policy. This provision shall state what is the relationship between the platform and the user. It should also contain conditions (if any) under which such a relationship shall become effective. As a form of illustration, it can be drafted in the following manner.
“This policy governs the relationship and serves as an agreement between the user and the platform by which you may access and use the Platform and our related websites, services, applications, products and content (collectively, the ‘Services’).”
This provision is important in order to define the scope of the relationship. Ideally, this provision is included at the beginning of the Terms of Service.
- Acceptance of the Terms
Acceptance is an integral component of forming a binding agreement. However, while contracting with social media platforms, there could be millions of users who may want to avail the services of these platforms. Individually drafting a contract for each user would be a mounting task for any platform. As a result, these platforms have standard terms which the users have to accept in order to form a binding agreement. This is called a Clip-Wrap Contract. It can be drafted in the following manner:
“By accessing or using our Services, you confirm that you can form a binding contract that you accept the terms of our e-policy and that you agree to comply with them.”
- Collection of Personal Data
This is probably the most important aspect that social media platforms need to keep in mind while drafting an e-policy. As of now, there is no formal legislation that governs personal data protection in India.
Regardless, each platform has to provide full information regarding the data it collects of its users especially if they offer services to users from all over the world since there are laws prevalent in other jurisdictions in this regard.
The platform has to provide:
- Data it collects from users;
- Data it collects from other sources;
- Purpose of collecting the data;
- Data shared with any third party and for what purpose;
- Consent for sharing the data;
- Storage of the data;
- How can a user opt-out of this data collection;
- Whom to approach in case of a grievance.
These points need to be given due importance considering the heavy penalties for non-compliance it can have in respect to Personal data protection laws. In Europe, the General Data Protection Rules allow the Data Protection Authority to issue fines up to 20 million pounds.
In addition, if the terms of service allow minors to use the platform, then the platforms should also comply with the information collected from the minors.
- Obligations of the users
There must be a provision in e-policy (generally in Terms of Service) that provides obligations of each user. This includes posting sensitive content, sexual content, promotion cyberbullying, etc.
These obligations shall provide the users with what they are supposed to do and what to avoid. It should also provide the acts for which users would be liable individually and the platform will take no accountability. This should be included in the Terms of Service. For the purpose of reference, you can check out Instagram’s obligations from the users.
- Obligations of the platform
Similar to the obligations of the users, the e-policy should also provide obligations of the Platform. This includes laying down the grounds and process to take down sensitive content for a user, using the personal data of users for a lawful purpose, providing a detailed description as to how the platform functions, providing reasonable protection to the content of the users, etc.
LinkedIn has no specific clause as to what are the obligations of the platform but in separate sections has laid down what shall the platform do with the user’s data, what is method it uses to enable communication, what are laws it complies with, etc.
- Intellectual Property Rights
Intellectual Property Rights (IPR) are very important in the domain of social media platforms. The platform must prohibit posting, sharing, or sending any content that violates or infringes someone else’s copyrights, trademarks, or other intellectual property rights.
There must be a provision that:
a. Prohibits the IPR infringements;
b. Provides the steps users can take to remove the copied post;
c. Provides notification of the infringement;
d. Provides actions against false claims;
e. Provide what steps the platform can undertake to take against the infringement.
This is such an essential provision in the social media domain that platforms like Facebook, Instagram, TikTok have a separate e-policy tab for these. One way of framing it is the way Facebook has done through its Intellectual Property Policy.
- Other key points:
b. These policies should be easy to locate on the platform and shall have a hyperlink attached to it at the time of the user creating the account itself.
c. The e-policy should be well formatted without the presence of any ambiguity and should not contain too much technical jargon. This will ensure every individual is able to read the policies with ease.
d. The working of the platform must not have an adverse effect on society. For example, in April 2019 the madras High court passed the order directing the state government to prohibit the downloading of the Tik Tok App and called it dangerous for children. The Government of India banned it on 29 June 2020 calling it to be prejudicial to the sovereignty and integrity of India, security of a state, and public order. This act of banning has been done under Section 69A of the information technology act read with the provisions of Information Technology (Procedure and Safeguards for Blocking of Access of Information by Public) Rules 2009.
While the drafting of each social media platform depends upon the nature of working of that platform. However, certain points remain in common and should not be ignored, especially that related to data collection and processing of the user. Moreover, one should also keep in mind to provide the obligations of the users as well as the platform just like in any other contract as it forms the essence of a legal document. We also discussed how due consideration should be given to Intellectual Property Rights considering most of the legal issues in the social media domain revolves around protection to the original creator amongst other things. And lastly, we discussed a few common practices one should keep in mind while drafting an e-policy which the giants of the industry have followed for years and have remained intact which can be included while drafting a crisp and concise e-policy.
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