User Generated Content Gone Bad – A Legal Perspective

An extremely popular way to populate a site these days is to allow user-generated content. After all, Mark Zuckerberg made billions with such content on Facebook. While user-generated content is a great way to populate a site, there are legal issues one must keep in mind and policy on an ongoing basis.

UGCUser generated content gone bad

What is user-generated content? It is any content a user uploads to a site including text, photographs, and videos. A perfect example of a user-generated content site is YouTube.com. 99.99 percent of the video content on the site consist of member creations.

Why is this form of content so popular? For a site to grow, it needs to add content continually. Traditionally, an online operator created the content themselves or hired someone to do it. On a site such as this one, I have to write each post, and that takes a good amount of time. [Yes, I hear you playing the world’s smallest violins on each hand]. The ability to grow from 100 to 200 will take a long time regardless of how much coffee I drink.

With a user-generated content site, you can gain 100 pages of content in a single day. At one time, EzineArticles.com was one of the most visited websites in the world. The site was essentially a directory of articles written by authors that could be republished by third party sites. Ezine Articles published thousands of articles on a daily basis. The massive amount of content resulted in high search engine rankings to the point the website was getting more than 300,000 unique visitors a day. Nearly all those visitors were coming to the site because of the user-generated content. Of course, Google more or less crucified the site with its Penguin and Panda updates, but such is life on the ever evolving web.

Gone Bad

Many online operators rush to incorporate user-generated content into their site through forums, reviews, guest posts and other creative modules. There is nothing wrong with this so long as you understand there are potential downsides and burdens associated with this type of content. Let’s take a look at a few of them.

Copyright Issues

Allow user-generated content on your site, and you will run into copyright infringement problems sooner or later. Users will upload copyright content without giving much thought to it. To protect your business, you must get into compliance with the Digital Millennium Copyright Act of 1998 by designating a DMCA agent [Rent one here]. The process for DMCA compliance is technical, but the important thing to realize now is getting into compliance provides you with immunity from monetary infringement claims for content uploaded by your users. In short, this is a step you want to take.

Studio shot of a young couple fightingDefamation

People say the damnedest things, mainly when they mistakenly think they are anonymous online. If you allow user-generated content on your site, you run the risk of one user defaming another. Defamation typically occurs when a debate over a hotly contested issue arises. If one visitor has an opportunity to say something nasty about another party, they always seem to.

Fortunately, online businesses are protected from liability for defamation by users under the Communications Decency Act, a federal law. You do not need to take any steps to gain the protection unlike with the DMCA. There is a potential problem, however. The “CDA” is a law devoted to restricting pornography online. Much of the law was thrown out by the courts as being unconstitutional with only small sections surviving, one of which protects sites in defamation situations.

Sooner or later, the CDA is going to either be fixed or eliminated. This is a seriously flawed law. Such laws rarely survive for long and it is surprising this one has lasted a decade. At some point in the future, Congress will take a stab at limiting porn online again. Given their incompetence, they will undoubtedly write another unconstitutional law that gets thrown out by the courts. Regardless, there is an excellent chance the new law will cancel out the CDA. If this occurs, sites could arguably be held liable for defamatory statements by their users. In short, this is an issue to keep an eye on in the future.

Loss of Control

As an online business, you undoubtedly control your message very carefully. Such control is impossible with user-generated content. The users are not your employees so they may end up saying or moving conversations in directions you are not anticipating. This is particularly true if you launch a product that does not meet expectations. If you can’t stand the idea of losing control over the content and message on your site to some extent, then allowing user-generated content is a mistake.

In Closing

Overall, user-generated content is considered a positive developement for most sites. Having said this, make sure you take all necessary steps to protect your site and educate yourself on what is involved in dealing with this type of user interaction. Don’t hesitation to contact me if you need assistance.

Richard A. Chapo, Esq.

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