To embed a tweet or not?

The article by Vidhi Choudhary was published by Livemint on September 23, 2016. Vidhushi Marda was quoted.

On 20 September, a user on Twitter put out details of her intriguing conversation with the driver of a leading cab hailing service that she had used. Simply put, their conversation led to the revelation of a possible scam with a direct competitor of the said cab service.

The subject of the detailed chat easily had the makings of an investigative story and, therefore, a digital news website in India reproduced the string of tweets put out by the user in the form of a story on its platform.

This was done without her consent and hence the user asked the digital platform to take that story down.

In the light of this episode, let’s take a look at the laws governing such a situation. The question is, does the use of the tweet by the digital news website amount to copyright infringement or not? Or, whether Twitter is liable or not?

As it turns out, Twitter has a safety net within the terms of service that a user must agree to before they sign up onto the platform. A company spokesperson confirmed that Twitter was not liable if a user’s Tweet is used by someone else. “On the issue of consent, one (individual/organization) needs to take consent from the other user before using his\her tweets,” the spokesperson said.

Media lawyer Apar Gupta agreed and said that Twitter’s terms of service clearly state a clause in favour of the platform which means it is not legally liable in the above mentioned situation. “They have a worldwide, irrevocable license to publish content on their platform, which is also provided for third party affiliates,” said Gupta.

The next question is whether a user’s tweet published by someone else amounts to copyright infringement.

“The law that’s applicable in such a situation is the Copyright Act. For the purpose of reportage you can path your use within the fair dealing section (52) of the Copyright Act. Secondly, if the content used was a work of literary nature and creative, it would be up for copyright protection, just a mere Twitter rant or factual statements might not be that plausible,” said Anubha Sinha, program officer, at Centre for Internet and Society (CIS).

Both Gupta and Sinha agreed that the ownership of the tweet rests with the user and only the user. “It would amount to copyright infringement if the fair use clause is exploited,” said Gupta.

To be sure, globally, too, media has been grappling with the issue. In a September 2013 article published on leading media platform, Poynter stated, “The legal rights to re-use content really only extend to Twitter, its official partners and anyone pulling tweet data through the Twitter API. So if you embed a tweet using the official Twitter-provided embed code, you should be fine. However, if you just copy and paste the text of a bunch of tweets, or download a Twitter photo and upload it to your own CMS, you may be on shakier ground. The “fair use” exceptions to copyright may still protect you depending on the circumstances, but you might have to prove it.”