Social media platforms have revolutionised how we communicate, share ideas, and access information. Every day, millions of users upload videos, music, and images to streaming services like TikTok, YouTube and Facebook, often without a second thought about the legal implications. But what happens when a user posts content that infringes someone else’s rights? Can the streaming platform be held responsible, or does the law shield these platforms from liability?
Ghana’s Electronic Transactions Act, 2008 (“ETA”) sets out a framework that balances the interests of content creators, users, and service providers. It offers protections to platforms that act as intermediaries or hosts for internet users to upload, transfer, and post videos and pictures.
Importantly, those platforms that enable people to upload and store electronic content for others are either intermediaries or service providers.
An intermediary or service provider is one who stores electronic content at the request of a user. Most social media and streaming platforms are considered intermediaries. For instance, platforms like TikTok, YouTube and 'X' (formerly Twitter) allow users to upload and share content or videos. These platforms do not originate the content; their role is to facilitate access to content uploaded by users and made available to the public.
The ETA provides for an intermediary or service provider to be free from liability for any losses arising from the storage of information supplied by a user if the following conditions are satisfied:
- the provider must not have actual knowledge that the information or related activity infringes the rights of a third party;
- the provider must not be aware of facts or circumstances from which the infringing nature of the content is apparent or can reasonably be inferred; and;
- upon receiving a valid takedown notice, the provider must act expeditiously to remove or disable access to the information. For a takedown notice to be valid under the ETA, it must include:
- the complainant’s full name and address;
- the complainant’s written or electronic signature;
- identification of the right allegedly infringed;
- identification of the material or activity claimed to be unlawful:
- the remedial action requested from the intermediary; and
- the complainant’s telephone and electronic contact details.
This provision reflects international norms on intermediary liability and serves to protect neutral service providers who play no active role in the creation or promotion of infringing content. It recognises that requiring hosts to monitor all user activity would be technologically and economically unfeasible. As a result, social media users cannot hide behind the platforms they use to post any content they please.
The ETA establishes an important nuance: it makes the safe-harbour protection conditional. An intermediary benefits from the limitation on liability only if it has provided an address for receiving infringement notifications or appointed an agent to receive them.
When Do Platforms Become Liable?
A platform can become liable for content when it obtains and distributes that content through a commercial arrangement. For example, consider a platform that secures a licence from a music distributor or third-party rights holder to stream a song, whether through a featured playlist, background music, or an official account. In doing so, the platform is no longer acting as a neutral intermediary. Rather, it becomes a content provider, publisher, or distributor, and may be held directly liable for any resulting infringement. This is because, in such a circumstances: (i) the content was not uploaded by a user; (ii) the platform made a business decision to stream it; and (iii) the platform exercised control over what content to display. These factors collectively take the platform outside the scope of the ETA.
What Then Should Hosting and Streaming Platforms Look Out For?
- As a precaution, platforms that enter commercial arrangements with distributors, third-party rights holders, or artist sponsors should ensure that their contracts include robust indemnity provisions. These provisions should entitle the platform to seek compensation or reimbursement if the content supplied is later found to infringe the rights of the true copyright owner.
- Streaming platforms must implement measures that allow users to file complaints.
- When complaints or takedown notices are received, platforms must quickly act on them, as required by the ETA.
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Read the original publication at ENS
