Can user generated content get you sued?

Allowing consumers to interact with your site and share their own reviews, comments and opinions is an increasingly popular form of customer engagement for retailers. Yet while there is value in such an improved targeting of customers, the increasing commerciality of user generated content (UGC) means that retailers should be aware of the legal ramifications surrounding these services.

By Natalie Salunke, Head of Legal EMEA at Venda

What legislation and what steps can retailers look at to ensure they are not held liable should this user generated content prove inappropriate?

For retailers, there are a number of issues arising from content contained both within their own websites and those that they link to. This is because website operators are, in principle, liable as publishers for everything that appears on their sites, even though the content may in fact be determined by its users or third parties.

When it comes to copyright infringement, a user can easily post work that constitutes, includes or is based on the copyright works of others. Be this pictures, text or video. It is therefore difficult to be certain whether the user has the right to share such information or not.

Asking a user to warrant ownership of the information can help a retailer when building a legal case against them, but it is often of little practical assistance when faced with a third party infringement claim.

The risks associated with third party content are numerous. Any negative and unproven comments about an individual or entity posted on a website can easily be deemed defamatory. Defamatory content can often have expensive and unwelcome consequences, with victims even committing suicide in very extreme cases.

There is also a general legal requirement against inciting others to commit criminal acts. As such, any post promoting criminal acts could constitute incitement. In both instances, a successful site can end up costing retailers dearly, as the higher the website traffic, the more costly the infringement. For example, for defamation claims, each “hit” on a defamatory article can be counted as a separate offence.

Are there any defences against publishing infringing content?

If the worst happens and a claim is brought against you, moderation of content will help support a legal defence. There are two primary defences that retailers can use:

An “information society services” defence, i.e. you claim just to host such services or are a “mere conduit” in their provision. A retailer would have to demonstrate that they did not have actual knowledge of the unlawful activity or information. If they were then made aware, they must act expeditiously to remove access to it.

A second defence is the defence of “innocent dissemination” i.e. you cannot be seen to be the author, editor or publisher of the statement. Retailers must have taken reasonable care in relation to its publication and have no reason to believe that they caused or contributed to the publication of a defamatory statement, such as a competition or suggestion.

Ultimately retailers must remain vigilant, particularly when moderating content, responding promptly to any infringement notices received.

What can I do to avoid being sued?

Naturally risk mitigation is better than having to resort to legal defence, what with the costs and adverse publicity of a lawsuit.

The first step would be a prompt for contributors to accept to terms and conditions displayed on your site. These should prohibit users from posting infringing and illegal content, whilst reserving your right to remove any content placed on the website and disclaiming liability for infringing or illegal UGC. A “notice and take-down” policy will also help as it allows for rapid removal of any content found to be outside of these guidelines.

Implementing a monitoring process to filter out any potential infringing, illegal or inappropriate content is also a useful tactic, particularly when e-retailers are attempting to defend themselves from being deemed a “commercial publisher” as part of a defamation claim.

From a legal perspective, changes to the law are in progress that will affect how e-retailers manage these kind of legal issues. The draft defamation bill seeks to redress the balance between freedom of speech and the interests of victims of online defamatory content.

Under the proposed legislation, claimants will be able to pursue a claim against the true author of the defamatory publication so that they are held to account and cannot hide behind a pseudonym or anonymous post. This will be a positive move for retailers as they look to protect themselves from liability for UGC.

As of the date of this article, the House of Commons latest consideration of the bill is yet to be reported. However, the Government has indicated that it will provide further guidance to website owners in due course. In the mean time, thorough monitoring and public disclaimers will serve you well against defamatory “trolls”.

For more information visit www.venda.com