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How to Avoid Litigation from User-Generated-Content

May 8, 2019 | UGC


User-generated content (UGC) is a popular marketing method for a lot of reasons. It’s affordable, it allows brands to produce fresh content, customers trust it, and – perhaps most importantly – it gets results. However, for all its advantages, UGC can be a liability if not approached carefully.

There are existing copyright protections that can help brands skirt potentially catastrophic lawsuits, but the fact that UGC is relatively new means there’s a lot of nuance when it comes to the law. Fortunately, there are also measures brands can take to avoid running into legal issues.

Existing Protection

In 1998, President Clinton signed the Digital Millennium Copyright Act (DMCA) with the goal of “[moving] the nation’s copyright law into the digital age” One section of the DMCA in particular – Section 512(c) – facilitates compliance when it comes to user generated content. Section 512(c) protects sites from claims of copyright infringement for any and all content provided by others. It’s important to make clear that sites must follow certain procedures to stay within the “safe harbor” that this section of the DMCA provides.

These procedures are as follows:

  1. Notify the customers of its policy
  2. Follow proper notice and take down procedures
  3. Designate a copyright agent with the U.S. Copyright Office
  4. Not have knowledge that the material or activity is infringing or of the fact that the infringing material exists on its network

Working in tandem with the DMCA is Section 230 of the Communication Decency Act (CDA), which protects companies from defamation suits. It says that “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

While these laws free companies from much of the liability of UGC, there’s still a lot of legal gray area; and when it comes to social media platforms in particular, it is likely that regulation will increase significantly in the coming years.

Legal Gray Area

Because so much of UGC is now hosted on third-party social media platforms, brands are leaving the safety of hosting on their own sites but find themselves potentially exposed to liability. Here are a few reasons why content may be exempt from the protection of the DMCA:

  • The brevity of social media posts
  • Copyrighted third-party material may be implicated
  • There may be several organizations or individuals that qualify as rights-holders

One particularly interesting case that illustrates UGC’s potential for liability is the case of Subway v. Quiznos. Quiznos invited customers to participate in its ad challenge of comparing the quantity of meat in Subway sandwiches with theirs – this led Subway to cry defamation. While Section 230 of the CDA was cited in the hearing, a settlement was reached as Quiznos was shown to be “actively involved” in the content submission process. The lesson here is that implicating competitors in UGC can be especially risky, but there are plenty of other precautions organizations can take to have a successful marketing campaign that doesn’t result in litigation.

How Your Company Can Protect Itself

Getting user permission is a huge first step in protecting your company from a lawsuit. If you have permission to promote your brand with user content, you take away a large portion of the risk. There are two distinct ways of going about requesting permission: implicitly and explicitly.

Implicit permission, as its name suggests, assumes that the user is aware of the fact that a company is using their content for marketing. While it requires less effort than getting explicit permission, it is of course the riskier of the two options. Creating terms and conditions is key in dodging legal action here.

Explicit permission is much safer in that consent is not assumed but obtained. On top of the fact that it takes time and effort, asking doesn’t guarantee that users will permit use of their content. A branded hashtag may seem like a green light, but make sure to get explicit permission in this instance as well – the argument here being a user can unknowingly contribute to a marketing campaign just because they used the same hashtag. Even if it weren’t a liability, using customer content without approval runs the risk of harming your brand’s reputation.

Brands seeking permission are more likely to have success by approaching users in a friendly yet professional way. All requests should be sent from a company account, no matter the platform. Also, if your request is too robotic or spammy, the user might see it as a red flag. Keep the language clear and concise when asking for rights and maintain this language in response a request, whether it’s accepted or denied.

Third-Party Social Media Terms and Conditions

Terms and conditions. They’re not fun to read, but they’re undeniably important. When it comes to content ownership and the right to use content, most social media platforms tend to agree. Instagram’s Terms of Use perhaps get to heart of the matter most succinctly: “We do not claim ownership of your content, but you grant us a license to use it.”

However, reading the fine print of these ToS often reveals that protection from third-party claims is not provided. This is a great reason to implement a content curation process, which is discussed further on.

Create and Update Your Company’s Own Terms and Conditions

 Content hosted on the company website or anywhere outside of social media obviously can’t look to Twitter or Instagram’s terms of service for protection. Any company marketing with UGC should cover itself with its own ToS. Consider the following:

  • Just as social media platforms do, getting license to publish and/or use material posted on a company site is crucial.
  • Include a copyright clause that shows users what they can do to report potential copyright infringements on their site.
  • Include a limitation of liability that makes the company not responsible for what users submit or any damage incurred from it.
  • Establish what material is acceptable and what isn’t
  • Be clear about what information you gather from users in a privacy policy

Lastly, keep your terms and conditions relevant by reviewing and updating them at least once a year.

Spot Liability

Companies can widen their safety net by leveraging the relevant technology. For example, digital rights management (DRM) tools help to identify content that would be subject to liability. They also allow brands to sift through the content they’d like to secure the rights for and then make a record of users that have given permission.

Despite the usefulness of these tools, brands should never leave high-risk content to chance, nor should they underestimate the importance of the human element in this process. A sound strategy for curating content involves a pairing of automation and trained professionals. Those tasked with catching anything that could put the company at risk should be cognizant of all materials cleared by the legal department.

Lastly, brands should never ignore or combat user complaints and promptly take down any content that draws a complaint. It’s legally safer and it shows that a brand is willing to listen to its customers.

A Careful, Considered Approach

The many upsides of user generated content may lead brands to dive into a campaign head first. But it’s important to first understand the potential liability and develop a strategy to stay protected. When brands are clear about how they leverage user content and are simultaneously vigilant about how they’re being promoted, they stand a better chance of reaping all the benefits of UGC campaigns without any negative legal repercussions.