User Generated Content - legal implications

December 17, 2007

User Generated Content - legal implications

The rise in popularity of user generated content (UGC) and web 2.0 enabled sites has caused a number of unforeseen legal issues to arise. The legal implications are best looked at in terms of the major stakeholders concerned with UGC sites.  Broadly, these are:

• employers v employees
• rights holders v website operators
• website operators v users

Employers v Employees

With work forming such a major part of a person’s life, it is safe to assume that the subject of work and fellow employees will eventually surface in the form of UGC. Also, the lines between work and home are becoming increasing blurred with the use of technology; people working from home and also conducting their private life at work.

In terms of legal implications in the employment context, potential issues are as follows:

• “unfair dismissal”;
• negative publicity;
• vicarious liability to staff for discrimination or harassment actions;
• spying on employees, privacy and data protection issues;
• interference with work (“cyberslacking”) and loss of productivity; and
• the disclosure of confidential or sensitive information.

To minimise the risk of these legal implications, it is important for employers to develop guidelines and policies concerning the use of weblogs and issues related to UGC sites.

Employers should re-inforce these policies with appropriate training and education and also make sure employees are aware of the disciplinary consequences of breaching these policies. 

Rights holders v website operators

The main issues which arise between rights holders and website operators concern content liability. This is usually in the form of claims of copyright infringement or defamation.

It is possible that operators could be liable for content posted by their users. However, there are certain limited defences under the Ecommerce Regulations available to publishers who knowingly display content that is unlawful. Under these regulations operators have a defence for hosting unlawful content where they:

• do not have actual knowledge of the unlawful information;
• are not aware of facts and circumstances from which it would have been apparent to a service provider that the information was unlawful; or
• upon obtaining such knowledge, acts quickly in removing it. 
There are a number of issues that arise from this.
• Should the operator moderate? If content is moderated before being published and unlawful content slips through, then the operator will potentially be seen as a publisher of that content and could be liable for it. There are also issues of censorship and freedom of expression which could be seen to be contrary to the web 2.0 experience. Depending on the system of moderation, this could also be a considerable logistical undertaking.
• If operators do not moderate, they need to put in place effective notice and take down procedures.

This approach is not without risk either. Firstly, the operator has to make an assessment as to whether content is unlawful. If this assessment is wrong and content is not taken down, then the defence will be lost and the operator could be liable for the content.

Similarly, if the operator is over-zealous in removing content, then it could be open to allegations of censorship.

Website operators v Users

The terms of use of a UGC website is an important document. They need to cover the following areas:

• The copyright issue. In particular, a licence is required from the author of the content to be able to use the content. For example, the licence should grant the operator the ability to adapt the content in order to publish it through the web service; 
• Clear guidelines about what is and what is not acceptable content. Users need to be clear about the circumstances in which the operator will censure their content. Make sure that users are clear about how to notify the operator about unlawful or offensive content and the circumstances in which the operator will take action;
• Teenagers are a big target market for social networking sites and this can be problematic. Terms of use may not be legally binding against minors unless they are capable of understanding the nature of the act to which they are agreeing. You may need to consider implementing age verification procedures;
• Operators could get embroiled in litigation between a users and a third party. Operators need to ensure that their users cannot hold them responsible where a users details have to be passed to third parties in connection with legal proceedings. This is something that needs to be covered in a privacy policy and terms and conditions.


Related pages:

Managing content online more

Technology, Media & Digital more

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