How To Avoid Litigation from User-Generated-Content
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.
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
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
Lastly, keep your terms and conditions relevant by reviewing and updating them at least once a year.