Professional Documents
Culture Documents
User-generated Content
&
The Law
February 2010
CONTENTS
Introduction .............................................................................................................................................. 3
General ..................................................................................................................................................... 5
Jurisdiction ......................................................................................................................................................5
Contempt of Court ..........................................................................................................................................8
Employee Use of Social Media .....................................................................................................................11
Business Matters..................................................................................................................................... 37
Copyright, Trademarks, and Intellectual Property .......................................................................................37
Competitions ................................................................................................................................................41
Marketing and Advertising ...........................................................................................................................43
INTRODUCTION
“
trepidation in getting involved online for fear of falling foul of numerous often unknown
laws relating to online media and community management.
This remains a relatively new area to most in government with the perception of
”
complexity of legislation and the ramifications of failing to meet regulatory requirements
preventing many from engaging at all. This is particularly true in areas such as
safeguarding children online.
Those working in government looking to innovate in the area of digital media are crying
out for simplified support and guidance that enables them to stay the right side of the law.
As a moderation company, organisations call on us to protect them within environments that feature their
brand alongside user-generated content, be it on their own blogs or forums, or on mass social networking
sites such as Facebook or YouTube.
As part of our set-up process we undertake a risk assessment for each project, and it’s here we often
discover that many organisations aren’t aware of the various legal risks and are shocked of the damage that
can be caused. Relief that Tempero will take elements of liability swiftly follows the initial worry, but the
risks don’t only bring financial penalties – hence this guide.
In recent years most organisations have gone from minimal digital marketing (not even email campaigns) to
rolling out full blown social media campaigns with elements of data capture, content hosting, and direct
marketing to consumers.
We believe that the current level of limited knowledge and self-regulation is only going to damage the
digital industry’s reputation and we are likely to see a raft of tough legislation imposed if we don’t clean up
social media.
The issues are varied and after more than ten years working in interactive environments, one of the areas
we are still most concerned about is protection for children online. Through our work with brands like the
NSPCC and Disney UK, we see the vast scale of behind the scenes work required to ensure youth
communities are safe and productive environments.
For some brands it’s a case of cutting corners, but most are simply struggling to understand their
responsibilities and requirements under confusing and outdated laws. This guide aims to break down some
barriers and distil the wealth of available information into one easy to comprehend suite of usefulness!
Companies have the tough decision of deciding what they consider are acceptable levels of risk to their
organisation and what levels of damage to their reputation could result from legal action and the resulting
media fallout from operating within social media. Carrying out some level of moderation would generally
seem the sensible route to avoid issues.
For those not moderating, providing ways to report the content to site owners is vital, but unfortunately
we’re seeing many sites and groups poorly executing any means of which users (and even the police) can
alert inappropriate content. Even worse, is the speed at which reported content is taken down - if at all.
This is why we’re seeing the government setting up new reporting procedures, such as the Directgov portal
government for reporting terrorism, being extended as a place for the public to make “a civic challenge
against material that they find offensive, even if it is not illegal” while legislation catches up.
Despite the misconception that moderation is just “point and delete” every few days to clear out unwanted
content, moderation is a skill; requiring trained moderators to understand each brand’s acceptable levels of
risk, complex legal concepts, suspicious behaviour (such as grooming) and how to manage a community.
“
you can in drawing up your moderation policies. Someone will always do something you
haven't thought of! Have extensive guidelines in place and monitor closely, yet try also to
”
be as light a touch as possible as this is the key to creating an active, vibrant and lively
community. And remember your guidelines are not a static document - review and react.
Once you've established a community, you should also give power to users to flag up
unacceptable content and take control of their area as your active community members
are the ones best placed to guide you on what is and what's not acceptable.
“
There is a size threshold when a community needs to consider moderation. The bigger
and more popular a community gets, the more positive and negative attention it‟s going to
attract. It‟s important to keep the obviously bad elements out to ensure that the
contributive members feel comfortable and safe enough to participate.
”
A guide or rule book on what you moderate against should be made accessible to the
community so that there is no uncertainty for members on what is and isn‟t allowed. This
will actually promote interaction. If your community is up for it, have them suggest the
rules that they would like the community to be moderated on, empowering them with a
sense of the safety and direction of their community.
JURISDICTION
“ ”
This is a tough one, but the general rule is that any jurisdiction which has a clear
connection to the dispute will hear a case. Therefore, publishers and editors can't expect
to hide behind a server hosting overseas if they are personally located in the UK.
Furthermore, the Digital Economy Bill contains a draft provision which, if passed, would
allow the Secretary of State to order ISPs to block access to any website, wherever it is
hosted or controlled.
The internet is in effect a new territory, crossing physical and political boundaries. Jurisdiction is therefore
problematic, particularly when laws in different countries are in conflict with each other. It affects all the items
discussed in this guide.
Definition
The Law
The United Kingdom is divided into three legal jurisdictions.
English law English law has jurisdiction over England and Wales.
Scotland has retained a different legal system from England and Wales but is
Scots law
effected by European Law and the ECHR.
Northern Ireland has had its own legal system since its creation as a separate
Northern Ireland law
country within the United Kingdom.
European Union law Has direct effect over all EU member states.
In The News
Generally speaking, each country's courts will decide whether they want to hear a case
If a website can be accessed within a particular country, anything uploaded to or downloaded from that
website is subject to the country's laws, even if the website is hosted, run and owned elsewhere
Defamation cases can be brought in every country in which the libel was accessed
The standards for proving libel in the UK are significantly lower than in the US, leading to what is known
as 'libel tourism'
Recommendations
State the jurisdiction in your Terms & Conditions – have a 'Choice of Law' or “Governing Law and
Jurisdiction” clause. You can also state which country's law will be followed, and this does not have to
be the same as the country for jurisdiction
Be sensitive to the range of different social norms and legal frameworks for users across the world
Further Reading
References
1 Danvers Baillieu, Winston & Strawn, Feb 2010
2 B Johnson “US Games Company sues British blogger” http://www.guardian.co.uk/technology/2009/dec/11/evony-sues-british-blogger, 11 Dec
2009
3 Wikimedia “Protecting the public domain and sharing our cultural heritage” http://blog.wikimedia.org/2009/07/16/protecting-the-public-
domain-and-sharing-our-cultural-heritage/ 16 Jul 2009
Contempt of Court
“ ”
There are things we can do – it's already happening. We are taking down names and
addresses from the internet, and we are working with service providers. People may think
they can get away with breaching court orders, but I would say to those people: I wouldn't
want to mess around if I were them.
Court orders are often put in place to ensure material isn’t published which could jeopardise a fair trial and also to
protect the identities of those involved in legal proceedings.
Online conversations around legal proceedings can frequently, and often innocently, veer towards being in contempt.
Recently though some community users are intentionally trying to use the ease of social media to publish and share
information to purposely ‘name and shame’ as witnessed in 2009 around the Baby P trial.
Definition
“When a court’s authority is not upheld, such as disobeying a court order, that action is held as
contempt of court.”
The Law
Contempt of court applies equally to content published by professional writers and the general public. A
precedent has been set that ISPs are protected if unaware of content in contempt, this would likely extend
to site owners and editors.
There are two forms of contempt of court:
In The News
Contempt of Court is considered a serious offence, but lack of knowledge appears to be a robust
defense
Publishers, and everyone else involved in publication, could in theory be held responsible for content
published
Even linking to foreign sites which break UK laws could count as contempt
Recommendations
Ensure your take-down procedures are fast and effective
Review your procedures regularly to stay in line with technological developments
Stay up to date with what orders are in place, particularly around high-profile or controversial cases
Further Reading
References
1 Baroness Scotland interview with the Guardian during Baby P trial “Is the internet destroying juries?”
http://www.guardian.co.uk/uk/2010/jan/26/juries-internet-justice, 26 Jan 2010
2 Contempt of Court Act 1981 http://www.opsi.gov.uk/RevisedStatutes/Acts/ukpga/1981/cukpga_19810049_en_2
3 Electronic Commerce (EC Directive) Regulations 2002 http://www.uk-legislation.hmso.gov.uk/si/si2002/20022013.htm
4 R Verkaik “Internet hate campaign that made a mockery of the high court” http://www.independent.co.uk/news/uk/home-news/internet-
hate-campaign-that-made-a-mockery-of-the-high-court-1770269.html, 11 Aug 2009
5 “Net firm wins Bulger ruling” http://news.bbc.co.uk/1/hi/uk/1432125.stm 10 Jul 2001
“ ”
As a responsible business, you should protect yourself by having clear internal policies
and procedures for dealing with UGC. You wouldn't ask your staff to operate heavy
machinery without the right safety equipment and training. The same should apply to use
of interactive internet technologies.
Unfortunately the use of social media such as message boards, Facebook, as well as a raft of other social
media tools has been received with some negativity by employers and a large proportion of companies are
laying down strict policy on the use of such media, some going as far as banning personal use in the
workplace.
“ ”
It is important that employers develop or update existing IT policies to state that any
comments posted by an employee either in work or outside of work which is considered
detrimental to the Company, its employees or clients and which are not consistent with
their terms and conditions of employment could lead to dismissal and outline what is
reasonable and expected of an employee and their use of such social media.
With many adopting social media programmes though, there is an increased risk of employees accidentally
violating employment terms, like confidentiality, as they familiarise themselves with how best to use social
technologies in the work context.
With many social media marketing mistakes falling under “Bad Practice” rather than a defined breach of
regulations we may see more former employees bringing cases of Unfair Dismissal against employers who
blame individuals rather than internal strategy for embarrassing corporate incidents. Many companies’ lack
of a workable and relevant social media policy could also increase disputes over what is and isn’t
appropriate employee usage of social media.
Of special mention is many employers’ failure to vet employees who moderate, or even oversee,
interactive online environments for young people since a recent law change at the end of 2009. [This is
discussed in more detail in the section Child Protection].
In The News
Copyright in anything created by an employee during their work normally belongs to the employer
Moderators and other employees should not normally be able to access or view personal data given by
users on your website
If you employ moderators to monitor children's interactive websites they have to be registered with
the Independent Safeguarding Authority
Employees should not use their moderator identity outside of working hours
Recommendations
Restricting all social media access is more likely to result in employees never learning how best to use
social networks and technologies
In general, while it might be advantageous to try and capitalize on an employee’s personal social media
profile, separate work and personal accounts may avoid problems further down the road
Employees using or overseeing any interactivity technologies should have basic legal training
Further Reading
Useful Links
Out-Law.com:
Internet and email policies http://www.out-law.com/page-458
Staff and their personal blogs http://www.out-law.com/page-7840
References
1 Danvers Baillieu, Winston & Strawn, Feb 2010
2 Debbie Towersey, HR2HR Solutions Ltd, Feb 2010
3 Zee “A severe breach of rules leaves Vodafone red faced and left to apologise on Twitter.” http://thenextweb.com/uk/2010/02/05/vodafone-
uks-tweets-awful-language-embarrassing-apologies/ 5 Feb 2010
4 C Beaumont “Habitat apologises for Twitter hashtag spam” http://www.telegraph.co.uk/technology/twitter/5621970/Habitat-apologises-for-
Twitter-hashtag-spam.html 24 Jun 2009
ONLINE PRIVACY
“ Every day I receive an email from somebody about how their account was hacked, how a
friend tagged them in the photo and they want a way to avoid it as well as a number of
other complications related to their privacy on Facebook.
Nick O‟Neill [1]
Personal information is one of the most valuable currencies on the net, but the ease of transmission of this
information can make it very easy for users and service providers to violate privacy rights. Regulators are
struggling to catch up with the realities online.
Data protection and how that data can be used in electronic communications is regulated in the form of the
Data Protection Act and the Privacy and Electronic Communications Regulations 2003. But growing
concerns around online privacy are predominantly related to the unauthorised publishing of information by
malicious, or even un-aware, social media users.
Definition
“The right of the individual to be protected against intrusion into his personal life or affairs, or
those of his family, by direct physical means or by publication of information.”
Privacy and Electronic The Directive on Privacy and Electronic Communications requires Member States
Communications to ensure confidentiality of the communications and related traffic data by
Regulations 2003 [3] prohibiting unlawful interception and surveillance.
This common law right has been established in the English courts in relation to
Common Law ‘right to
obtaining or publishing unauthorised information (or photographs) where a ‘duty
confidence’ [4] of confidence’ exists.
Aside from the obvious applications in Law, Health Services, and contractually,
[5] privacy can be protected by fair and reasonable expectation that information was
‘Duty of Confidence’
obtained confidentially. This confidence would be breached via unauthorised use
of that information, to the detriment, of the owner or subject of that information.
In The News
Specific laws to protect privacy are rare in the UK and elsewhere. New laws such as the European
Convention on Human Rights are changing this, but this piecemeal progress means UGC providers are
at risk of becoming a test case in the UK or abroad (see Jurisdiction)
Publishing information such as real names, addresses, relationships and private messages are risk areas
There are moves to shift power and protections back to the users, including an idea to develop a
standard Privacy Commons equivalent to the Creative Commons system already in use
Privacy violations are treated seriously by the courts, if found guilty, penalties can be heavy
The Privacy Paradox is where people say they are concerned about privacy but then give information to
sites like Facebook. This does not however, remove responsibilities from the service provider
However, under the EU Directive on Electronic Commerce, companies that cache or host user
information, and companies that serve as a "mere conduit," have broad immunity from prosecution
over user-generated material
Recommendations
Provide clear guidance and 'rules of play' to discourage privacy violations by users
Ensure staff are aware of the issues
Remove contentious content as soon as you can
Keep an eye on the news for changes in the law
Further Reading
Your Privacy
A UK site offering its readers advice about their legal rights
http://www.yourprivacy.co.uk/HumanRightsYourRightsToPrivacy.html
References
1 Nick O’Neill “10 Privacy Settings Every Facebook User Should Know” http://www.allfacebook.com/2009/02/facebook-privacy/, 02 Feb 2009
2 European Convention on Human Rights http://www.echr.coe.int/nr/rdonlyres/d5cc24a7-dc13-4318-b457-5c9014916d7a/0/englishanglais.pdf
3 Privacy and Electronic Communications Regulations 2003 http://www.opsi.gov.uk/SI/si2003/20032426.htm
4 Right to Confidence (Open University) http://openlearn.open.ac.uk/mod/resource/view.php?id=282302
5 Duty of Confidence http://www.ipit-update.com/conf.htm
6 C Arthur “Wikipedia sued by German killers in privacy claim” http://www.guardian.co.uk/technology/2009/nov/13/wikipedia-sued-privacy-
claim, 13 Nov 2009
7 B Johnson “Privacy no longer a social norm, says Facebook founder” http://www.guardian.co.uk/technology/2010/jan/11/facebook-privacy, 11
Jan 2010
DATA PROTECTION
“ ”
Although heavily regulated, there has not been much in the way of practical guidance for
those companies who are collecting data online. However, the Information Commissioner
is currently consulting on a new code of practice in this area - the first related to the
internet in ten years, since the issue of cookies was examined!"
[1]
Danvers Baillieu
While privacy laws are patchy and unclear, the Data Protection Act 1998 (DPA) is robust, and reinforced by
EU directives and human rights legislation. Criminal as well as civil charges can be made if you break Data
Protection Laws.
The Privacy and Electronic Communications Regulations set out rules for people who wish to send you
electronic direct marketing, for example, email and text messages. The Information Commissioner's Office
provides information on UK Privacy Guidelines and Regulation.
Definition
“Personal data is any recorded information about a living individual that can be identified from
that data and other information.”
Both the UK and European Union have clear regulation in the area of collection and use of personal data.
Relevant laws are many but the principle one is the Data Protection Act 1998. It
Data Protection Act 1998
[2] contains eight Principles which Data Controllers (anyone storing personal data)
must adhere to.
In The News
A website which collects any kind of personal information has to follow the 8 Data Processing Principles
in the Data Protection Act. It also has to register as a 'Data Controller' with the Information
Commissioner's Office. Failure to do so is a criminal offence
‘Processing’ is defined very broadly and includes data collection, use, storage, disclosure, amendment
and even mere possession
The Act applies whenever a controller uses equipment situated within the EU in order to process data -
and this includes user's computers. So even if your business is outside the EU, you will still have to obey
the same rules if you deal with any user within it
Individuals have various rights including access to the information you store about them. Make sure
you are able to uphold these rights
Transparent data collection also extends to automatic tools such as cookies, IP identification, or other
tracking and collection tools such as spiders
Moderators should only have access to users’ personal data in order to enable them to perform
moderation. User data such as email addresses and other personal information should be restricted on
moderator accounts unless it is essential for them to see it
Recommendations
Useful Links
The Information Commissioner's Office has launched a consultation on new guidance governing online privacy:
(Consultation closes on 5th March 2010) http://ico-consult.limehouse.co.uk/portal/cop/pio?pointId=1061680
References
1 Danvers Baillieu, Winston & Strawn, Feb 2010
2 Data Protection Act 1998 http://www.opsi.gov.uk/acts/acts1998/ukpga_19980029_en_1
3 The Privacy and Electronic Communications (EC Directive) Regulations 2003 http://www.opsi.gov.uk/SI/si2003/20032426.htm
4 Deutsche Welle “German teachers irked by students’ online evaluation” http://www.dw-world.de/dw/article/0,,2718572,00.html, 5Aug 2007
5 http://www.saferinternet.org/web/guest/safer-internet-day
DEFAMATION
“ ”
An issue that's particularly difficult for NHS Choices is managing sensitive comments
made in our GP practice and hospital reviews area on issues such as 'medical negligence'
and malpractice. We don't want to reject out of hand, but also have to protect NHS staff
and hospitals from defamation.
Defamation is damage to another's reputation. Defamatory statements can be either libel, which is written,
or slander, which is spoken. If you host UGC, you have a risk of being sued for content you didn't create.
Section 1(1) of the Defamation Act 1996, whereby a defence can include showing they were not the
author/ editor/ publisher of the statement, took reasonable care, and had no knowledge of a defamatory
statement, can offer some protection from legal action.
Definition
The Law
The Defamation Act 1996 Last updated in 1996, the Act covers some specific internet principles, but look to
[2] previous trial outcomes for further examples of social media permeations.
In The News
A website or an ISP is usually seen in law as a publisher. If the website is moderated, you may also be
an editor
If a defamation claim is made, the website, ISP, and writer can potentially all be sued
While an internet audience may initially be very small, the persistence of content, links etc means that
it can have permanent and much larger reach
An audience of one is enough to make a claim possible; greater numbers can increase the size of
damages awarded
As with copyright, the fact that 'someone else published it first' is not a defence. So copying, repeating
or forwarding libelous remarks can make you guilty of libel
Recommendations
The Defamation Act 1996 protects publishers if they “took reasonable care in relation to ...publication”.
Have a complaints policy and procedure
Be prompt in removing any material that provokes a complaint
Have clear monitoring policies and ensure staff are aware of the issues
Provide clear guidance and 'rules of play' to discourage defamation by users
Further Reading
References
1 John Robinson, NHS Choices, February 2010
2 Defamation Act 1996 http://www.opsi.gov.uk/Acts/acts1996/ukpga_19960031_en_1
3 A Sherwin “Chat room insults lead to internet libel” http://technology.timesonline.co.uk/tol/news/tech_and_web/article743902.ece, 22 Mar
2006
4 A Bloxham “Half of web users’ support bloggers code” http://www.telegraph.co.uk/news/1952976/Half-of-web-users-support-bloggers-
code.html, 13 May 2008
“ ”
If you edit or run a group or community, even if you're not responsible for the hosting of
content (such as a Flickr group), then choosing not to exercise control and ignoring
requests to remove defamatory or illegal content would not be a defence to any claims
brought against you.
[1]
Danvers Baillieu
Most hate, violent, or extremist content online tends to be offensive rather than illegal but more extreme
examples may be removed by police order and some sites even blocked.
“ This is also about empowering individuals to tell them how they can make a civic
challenge against material that they find offensive, even if it is not illegal. The internet is
not a lawless forum and should reflect the legal and accepted boundaries of society. ”
Lord West [2]
A recent pilot scheme launched 1st February 2010 by the Home Office to help the public report suspected
terror-related and violent extremist websites to the police indicates the government may more proactively
exercising powers of take-down as covered under section 3 of the Terrorism Act 2006.
The UK has been countering terrorism since 1969 and recent terrorist activity since the start of the
millennium means anti-terror and extremism laws often clearly include references to online.
Definition
“A hate crime is any criminal offence that is motivated by hostility or prejudice based upon the
victim’s disability, race, religion or belief, sexual orientation, or gender words. This includes
pictures, videos, and even music.”
“Terrorism could broadly be defined as committing violent criminal acts usually with the aim of
attaining political or ideological goals.”
The right to freedom of speech is strongly protected meaning that most offensive content online is not
actually illegal. For hate or violent content to be illegal it would most likely have to be covered by the
Terrorism Acts. We have further broken down examples of these:
In The News
If you have editorial responsibilities you should remove illegal comments or content as soon as you
know about it
You should report illegal content to both the police and Home Office
The Terrorism Act says that hosts would need to take down content of concern within two days of
receiving a take-down notice from the police. This includes re-postings and copies of similar material
If a host is found to be 'endorsing' terrorist material, (which includes failure to remove it within two
days) the maximum penalty is seven years in prison
You may be asked by the police to hand over personal data you have stored about users
Be aware the public may report content they find offensive but is not necessarily illegal
Recommendations
Your own Terms & Conditions can help you cover offensive content, empowering you to remove
content and ban users if breaching your own standards of acceptability
Have clear monitoring policies and ensure staff are aware of the issues
Have good reporting processes in place including easy-to-use “report this” buttons alongside content
where applicable or there is a high level of risk
Further reading
Useful Links
References
8 Danvers Baillieu , Solicitor for Winston & Strawn, Feb 2010
9 Parliamentary Under-Secretary for Security and Counter Terrorism, 1 Feb 2010 http://www.homeoffice.gov.uk/about-us/news/reporting-
terrorist-material.html
10 Terrorism Act 2000 and 2006 http://www.opsi.gov.uk/acts/acts2000/ukpga_20000011_en_1 ,
http://www.opsi.gov.uk/acts/acts2006/ukpga_20060011_en_1
11 L Richardson “Claims of hate crime over social networks”
http://www.thenorthernecho.co.uk/news/4852677.Claims_of_hate_crime_over_social_networks/ , 15 Jan 2010
12 “Laws should not criminalise Muslims for thought crimes” http://www.heraldscotland.com/news/crime-courts/laws-should-not-criminalise-
muslims-for-thought-crime-1.1005031 , 9 Feb 2010
They would create an alias, pretend to be me, then send abusive messages to others.
“
They left messages on my web page calling me a slag or a slapper, then created online
groups dedicated to calling me names. They covered my internet page with swearwords
”
and took the mickey out of my appearance. It made me feel really angry and depressed
but I didn't want to delete my Bebo page. I have the right to be online as much as
anyone.
Harassment can impact children and young people differently from adults. While adults are more able to
seek advice and take action, young people may put up with abuse and bullying for complex reasons.
Legal responsibilities of a site owner, publisher, or editor to prevent harassment are pretty much non-
existent and it’s up to the individual who claims they are being harassed to take action against the
individual or individuals who’s conduct is in question. Child protection groups in the UK are campaigning
across the board for greater protection of children online, particularly in social networking environments,
and similar cyber bullying discussions are taking place in the US.
Content which is discriminatory based on age, race, gender etc. is covered by a number of Acts.
Definition
“Unwanted conduct that violates a person’s dignity or creates an intimidating, hostile, degrading,
humiliating or offensive environment.”
Freedom of Speech rights are strongly protected in Europe meaning that most offensive content online is
not actually illegal. Acts potentially related to online harassment are
Primarily created to provide protection from stalkers. The person pursuing the
Protection from
course of conduct called in to question must know, or ought to know, their
Harassment Act 1997 [2] behaviour amounts to harassment.
In The News
Failure to protect children and vulnerable people from harassment, while not legally enforceable, could
attract critical attention and the digital industry is under pressure to improve self-regulation
Common sense should prevail, persistent or extreme intimidation is best removed from UGC
environments you manage while test cases are still being brought against site owners and managers
Recommendations
Have a clear community policy and Terms of Use
In youth communities, go further, provide protection in the form of moderators and community
managers as well as a clear, easy-to-use, complaints process for users
Further Reading
Useful Links
Need 2 Know
http://www.need2know.co.uk/relationships/bullying/article.html/id=1131
References
1 Kiri Fuller, “Three victims talk about cyber bullying” http://www.thesun.co.uk/sol/homepage/woman/real_life/2564956/Three-victims-talk-
about-cyber-bullying.html, 31 Jul 2009
2 Protection from Harassment Act 1997 http://www.opsi.gov.uk/acts/acts1997/ukpga_19970040_en_1
3 Criminal Justice & Public Order Act 1994 Chapter 33, Part I http://www.opsi.gov.uk/acts/acts1994/ukpga_19940033_en_1
4 Sexual Discrimination Act 1975 http://www.opsi.gov.uk/acts/acts1975/PDF/ukpga_19750065_en.pdf, Race Relations Act 1976
http://www.opsi.gov.uk/SI/si2003/20031626.htm, Disability Discrimination Act 1995
http://direct.gov.uk/en/DisabledPeople/RightsAndObligations/DisabilityRights/DG_4001068
5 V Kim “Students’ right to be nasty on net upheld” http://www.smh.com.au/technology/technology-news/students-right-to-be-nasty-on-net-
upheld-20091214-ksdj.html, 15 Dec 2009
6 B Johnson “US Cyberbully bill ‘a threat to free speech’” http://www.guardian.co.uk/technology/2009/may/06/cyberbullying-bill, 6 May 2009
OBSCENITY
“ ”
Not only does the nature of the content we deal with continue to evolve but the political
and public environment in which we operate is becoming increasingly focussed on
combating internet criminality. This attention means regulatory models for combating
illegal online content are coming under more intense scrutiny.
Of most relevance to the interactive environment are the 2008 updates to the Criminal Justice and
Immigration Bill. For the first time Laws and guidance extended criminal liability for the possession of
extremely graphic images from the publisher to the consumer.
While obscene content has always been illegal, attention has focused towards the online world and social
networking where content can easily be published and shared. Legislation in this area is being strongly
driven by child protection groups.
The unknowing site host could encounter these laws unexpectedly, as seen in 2008 when UK access to a
Wikipedia page was blocked by watchdog the Internet Watch Foundation (IWF).
Definition
“An article is obscene if it’s intended to corrupt or deprave persons exposed to it.”
Criminal Justice and Refers to the possession of an extreme pornographic image, indecent
Immigration Act 2008 [2] photography of children, and publication of obscene articles.
In The News
Recommendations
Robust Terms and Conditions in place and easy reporting processes for users
A policy and process in place to acknowledge and act on these reports within an appropriate time
frame
In youth communities, go further, provide protection in the form of moderators and community
managers as well as a clear, easy-to-use, complaints process for users
Further Reading
Useful Links
References
1 Professor Ian Walden, IWF Independent Vice-Chair http://www.iwf.org.uk/media/page.86.htm Apr 2009
2 Criminal Justice and Immigration Act Part 5 http://www.opsi.gov.uk/acts/acts2008/ukpga_20080004_en_9
3 Obscene Publications Act 1959 http://www.statutelaw.gov.uk/content.aspx?activeTextDocId=
4 S Musil “U.K. Internet watchdog backtracks on Wikipedia ban” http://news.cnet.com/8301-1023_3-10119879-93.html, 9 Dec 2008
5 C Summers “’Extreme’ porn proposals spark row” http://news.bbc.co.uk/1/hi/uk/6237226.stm, 4 Jul 2007
CHILD PROTECTION
“ You should recognise that children generally have a lower level of understanding than
adults, and so notices explaining...should be appropriate to their level... the language of
the explanation should be clear and appropriate to the age group the website is aimed at. ”
Information Commissioner [1]
In the US there is specific legislation directed at the protection of young people online in the form of the
Child Online Privacy Protection Act ("COPPA") but, as yet, no equivalent in UK law.
There have been a number of indications from the Department for Culture, Media, and Sport that it
believes formalised regulation is both necessary and inevitable and there was even talk of a
Communications Act but nothing has been confirmed.
While the Data Protection, Protection of Children, and Sexual Offenses Act protect children both on and
offline, the unique nature of interactive environments has made things a little unclear.
Of note, on 12 October 2009, amendments to the Safeguarding Vulnerable Groups Act 2006 came into
force. The moderation of internet chat rooms and anything deemed “a public electronic interactive
communication service” likely to be used “wholly or mainly by children” became a regulated activity.
Anyone undertaking such activity needs to comply with the associated vetting and barring scheme.
Definition
“The protection of young people from exploitation, both sexually and commercially.”
Safer Social Networking Best practice guidelines for brands and service providers in the area of child safety
Principles for the EU [6] in interactive environments.
Children's Online Privacy US websites collecting information from children under the age of thirteen are
Protection Act of 1998 [7] required to comply with United States Federal Law.
In The News
The government is encouraging service providers to take on greater responsibilities when children are
using their sites. This is likely to evolve into legislation over time.
Websites will be subject to independent review to ensure they are meeting UKCCIS standards
Employees taking on moderation where children are involved must comply with vetting procedures
Employees are not entitled to access personal data records as a matter of course
Site functionality like data collection and reporting abuse must be age appropriate
Recommendations
Useful Links
References
1 Information Commissioner
http://www.ico.gov.uk/upload/documents/library/data_protection/practical_application/collecting_personal_information_from_websites_v1.
0.pdf, 5 Jul 2007
2 Practical Application to the Data Protection Act, Collecting personal information
http://www.ico.gov.uk/upload/documents/library/data_protection/practical_application/collecting_personal_information_from_websites_v1.
0.pdf, 5 Jul 2007
3 Guide to the Sexual Offences Act 2003 http://www.homeoffice.gov.uk/documents/adults-safe-fr-sex-harm-leaflet.html
4 Protection of Children Acts 1978 http://www.opsi.gov.uk/RevisedStatutes/Acts/ukpga/1978/cukpga_19780037_en_ 1, 1999
http://www.opsi.gov.uk/acts/acts1999/ukpga_19990014_en_1
5 Safeguarding Vulnerable Groups Act 2006 http://www.opsi.gov.uk/acts/acts2006/ukpga_20060047_en_1
6 Safer Social Networking Principles for the EU http://ec.europa.eu/information_society/activities/social_networking/docs/sn_principles.pdf 10
Feb 2009
7 Children’s Online Privacy Protection Act of 1998 http://www.ftc.gov/privacy/privacyinitiatives/childrens.html
8 E Hughes, “Sony sued in US child protection case” http://www.theinquirer.net/inquirer/news/1049992/sony-sued-in-us-child-protection-case,
11 Dec 2008
th
9 J Mills “Couple’s £1.5m house trashed after hundreds of Facebook gatecrashers storm daughter’s 16 birthday party”
http://www.dailymail.co.uk/news/article-1091124/Couples-1-5m-house-trashed-hundreds-Facebook-gatecrashers-storm-daughters-16th-
birthday-party.html ,3 Dec 2008
“ ”
If you are running any sort of competition or activity which involves users submitting
content, in particular image or video based, you need to be clear in what you are doing
with that content and ensure it is covered in your T&Cs. You need to consider what rights
the users retain in their entries and what rights you have. For example, you might want to
use entries for subsequent marketing activity. At a minimum, you should ensure you have
the right to display and retain the entries, as with any other UGC.
Intellectual Property has been a very hot issue on the internet in recent years. Great numbers of lawsuits
have been filed in attempts to stop the wild spread of creative material. There are moves to bring much
stronger regulation to the internet; last year the EU set-up the European Observatory for Counterfeiting
and Piracy, and ratified the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty.
These treaties and a controversial Digital Economy Bill [2] that is going through UK Parliament at the
moment, aim to greatly strengthen the powers of the authorities to prevent copyright infringements on the
net.
Definition
“Intellectual Property is the ‘creations of the mind’ - whether industrial property (trademarks,
patents and industrial designs) or Copyright (artistic and literary works).”
Directive 2000/31/EC of
the European Parliament
The basic legal framework for electronic commerce in the Internal Market.
'Directive on electronic
commerce' [5]
In The News
Copyright protection is automatic. No contract needs to be signed for a creator to have entitlement to
control how their work is distributed
Copyright can only apply to words, pictures or an actual thing. It can't apply to ideas
Typical risk areas for UGC are hosting video that uses unlicensed music, and the use of branded or
trademark characters as avatars
Users will have copyright over original content they themselves create or upload to your site
If users are posting illegally copied content the EU E-Commerce Directive may protect you so long as
you are not encouraging this practice and you respond quickly to any take down notices
It is the quality, not the quantity of the content that is looked at in court, e.g. Tweets are not too short
to infringe copyright
Recommendations
In general:
If wanting to use content submitted by users it’s best to have lawyers create your Terms of Use
Ensure users accept the terms and know they have done so – having to tick a checkbox or some other
action before they can load creative content
If you plan to re-use or distribute user's own creative content, make sure they know the details of the
licence and agree to it first – for example, if running a photo competition.
Act promptly to take down any potentially infringing material as soon as you hear about it
Take care when using content under Creative Commons – it’s not a license to use everything for free
Further Reading
Useful Links
UK Intellectual Property Office consultation (available for feedback until 31 Mar 2010)
http://www.ipo.gov.uk/pro-policy/consult/consult-live/consult-gowers2.htm
UK Copyright Service:
http://www.copyrightservice.co.uk/
References
13 Danvers Baillieu, Winston & Strawn, Feb 2010
14 Digital Economy Bill, http://services.parliament.uk/bills/2009-10/digitaleconomy.html Current status
15 Copyright, Designs, and Patents Act http://www.opsi.gov.uk/Acts/acts1988/ukpga_19880048_en_2
16 UK Trade Marks Act 1994 http://www.ipo.gov.uk/tmact94.pdf
17 Directive 2000/31/EC of the European Parliament ‘Directive on electronic Commerce’ http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32000L0031:EN:HTML
18 Creative Commons http://creativecommons.org/
19 T Hawk “Richard Giles changes Olympic Flickr photos from Creative Commons to All Rights Reserved” http://thomashawk.com/2009/10/richard-
giles-changes-his-olympic-flickr-photos-from-creative-commons-to-all-rights-reserved.html, 14 Oct 2009
20 “YouTube wins partial dismissal of copyright damages claims in football copyright case”
http://www.brandrepublic.com/News/918615/YouTube-wins-partial-dismissal-damages-claims-football-copyright-case , 8 Jul 2009
COMPETITIONS
When running competitions online there are several risks to be alert to. You must comply with Data
Protection and Copyright laws for user-submitted content but in addition running an illegal lottery is a
criminal offence. Check before launching a prize promotion and get legal advice if needed.
Definition
“Competition will not be a lottery if it has a substantial skill element designed to either deter or
limit the number of entries and prize winners.”
33.1 Promoters should take legal advice before embarking on promotions with
CAP Code - Sales prizes, including competitions, prize draws, instant win offers and premium-
[2]
Promotions Rules payment promotions, to ensure that the mechanisms involved do not make them
unlawful lotteries.
Ensure you are complying with Data Protection & Copyright rules if collecting user's data
Recommendations
In general:
Have clear rules and conditions which are created or reviewed by your legal advisors
Clearly state which time zone you refer to when publishing competition closing times
You may want to restrict participation to particular countries to avoid jurisdiction issues
Further Reading
References
1 The UK Gambling Act 2005 http://www.opsi.gov.uk/acts/acts2005/ukpga_20050019_en_1
2 Non-Broadcast Code (CAP Code) - sales promotions rules http://bcap.org.uk/The-Codes/CAP-Code/CAP-Code-
Item.aspx?q=CAP+Code_Sales+Promotion+Rules_33++Prize+promotions+and+the+law
3 Facebook Promotions Guidelines http://www.facebook.com/promotions_guidelines.php, 22 Dec 2009
We stay up at night so you don’t have to © Tempero Ltd 2010 / Page 41 of 48
UGC and the law
In The News
“ ”
There is no single, transparent set of standards and procedures that govern modern
integrated marketing techniques. Traditional media distinctions have become impossibly
blurred. Different bodies regulate different marketing practices and they are all
struggling to catch up with digital marketing practice. Verifying a child's age online and
understanding and regulating children's privacy rights in relation to passive data
collection are particularly thorny issues.
In the UK, there are a set of Codes governing Marketing and Advertising, backed up by EU legislation. These codes
apply equally online and offline but are harder to control on the internet.
Recently it’s been suggested that if the industry doesn’t self-regulate better a government organisation, such as
Ofcom, may be given the remit to police online. This was echoed in a speech from David Cameron in January 2010
warning marketers to "show more restraint in the way they operate" [2] or face further regulation.
Most complaints about websites from the public in the UK relate to content on sites, rather than ads. At the moment,
website content is not considered to count as advertising, but there are moves to extend the rules to cover any
marketing claims online. The ASA could start regulating website content as early as the second half of 2010.
Definition
“’Sharp practices’ such as such as misleading and aggressive marketing, are prohibited throughout
the EU. A commercial practice is ‘aggressive’ if it significantly impairs the consumer's choice
through harassment, coercion or undue influence. ‘Undue influence’ results from a trader
exploiting a position of power.”
Outlines ‘sharp practices’ which will be prohibited throughout the EU, such as
EU Unfair Commercial
misleading and aggressive marketing. Updated in 2007 to include things like
Practices Directive 2005 [7] ‘astroturfing’.
In The News
Regulation
The ASA and CAP state that they “do not adopt a legalistic attitude towards sanctions and they ensure
that sanctions are proportionate to the nature of the breach...They focus on ensuring that non-
compliant marketing communications are amended, withdrawn or stopped as quickly as possible”
Marketing and advertisements in all online contexts are subject to exactly the same rules as in all other
media
The CAP Code applies to advertising in paid-for space, such as display advertising and paid search, as
well as commercial e-mails and sales promotions on websites. If you are accepting paid advertising in
your UGC environment, or using it for data capture and marketing, you must comply
Laws vary in different territories, and you can in theory be prosecuted in any country where your site
can be accessed
Viral ‘tell a friend’ type services if not carefully managed could be illegal under the Privacy and
Electronic Communications (EC Directive) Regulations 2003
Faking It
Code item 22.3 Marketers should not falsely claim or imply that they are acting as consumers or for
purposes outside their trade, business, craft or profession
Falsely representing a consumer in social media is illegal under the 2008 UK Consumer Protection from
Unfair Trading Regulations
Astroturfing is when a campaign is run online, with the intention of influencing consumers or politicians
by appearing to be a genuine 'grassroots' movement. Astroturfing is illegal in the UK
Excessive bias when moderating comments, to favour your brand and remove negative remarks, could
be construed as false advertising, especially if you gives users the impression your platform is for free
and fair comment
Children
Remember that the advertising restrictions for children are different than for adults
Recommendations
Let users know what levels of moderation are being used on your site i.e. deleting negative comments
Always use permission-based marketing
If children are likely to access your site, take extra care to be familiar with the marketing regulations for
communicating with children
Things are moving quickly, watch for regulation updates
Follow best practice and be responsible. This will help to protect you when reaching into different
countries and for a range of audiences, such as children and vulnerable adults as well as prevent highly
restrictive legislation being brought in to play
Further Reading
Useful Links
References
1 Agnes Nairn, Professor of Marketing, Marketing Week http://www.marketingweek.co.uk/news/academic-warns-online-marketing-for-children-
%E2%80%9Calmost-impossible%E2%80%9D-to-police/3008734.article, 14 Jan 2010
2 David Cameron ‘Supporting Parents’ http://www.conservatives.com/News/Speeches/2010/01/David_Cameron_Supporting_parents.aspx, 11
Jan 2010
3 Consumer Protection from Unfair Trading Regulations 2008 http://www.opsi.gov.uk/si/si2008/draft/ukdsi_9780110811574_en_1
4 Business Protection from Misleading Marketing Regulations 2008 http://www.opsi.gov.uk/si/si2008/draft/ukdsi_9780110811475_en_1
5 The British Code of Advertising, Sales Promotion, and Direct Marketing (CAP Codes) http://www.cap.org.uk/The-Codes.aspx
6 1984 European Directive on misleading Advertising Directive http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2006:376:0021:0027:EN:PDF
7 EU Unfair Commercial Practices Directive 2005 http://ec.europa.eu/consumers/cons_int/safe_shop/fair_bus_pract/ucp_en.pdf
8 The Privacy and Electronic Communications (EC Directive) Regulations 2003 http://www.opsi.gov.uk/SI/si2003/20032426.htm
9 P Altoft “Is Nokia guilty of blog comment spamming?” http://www.blogstorm.co.uk/is-nokia-guilty-of-blog-comment-spamming/, 20 Oct 2008
10 B Johnson “Apple blocks 1000 iPhone apps amid astroturfing claims” http://www.guardian.co.uk/technology/blog/2009/dec/08/apple-iphone,
8 Dec 2009
SUMMARY
The difficulties in regulating and legislating online word of mouth reflect how social media
“
dissolves the familiar boundaries between advertising, media, brands and consumers.
”
Branded online presences are „official‟ spaces but users assume they are in control.
A company trying to alter or censor their content can seem intrusive, but appropriate
moderation is that brand‟s right and responsibility. Many of these issues are ethical rather
than legal, which is why they are so thorny. Can we ever truly legislate free speech? This
needs to be an evolving public conversation.
To moderate or not to moderate, that is the tricky question. The law is not clearly defined in this area and
the lack of legal precedents here in the UK makes decisions even harder.
Risks (and potential liability) vary across different types of communities, so it’s impossible to create a “one
size fits all” approach.
In general, if you want to run or build an interactive community which will be wholly or mainly used by
young people then you should go above and beyond basic legal requirements and follow the guidance
available. Real legislation now exists in this area to help minimise the risks to our most vulnerable members
of society. New laws are leaving many organisations exposed.
At the very minimum you must have robust (and legally approved) Terms of Use for your site or group, a
clear reporting process, and respond quickly to content reported. Ignorance is no excuse, but your
response to content once aware of it, is key to establishing liability.
Dom Sparkes, MD, Tempero
CREDITS
Thanks to:
Darika Ahrens, Danvers Baillieu, Jon Bishop , Dominic Campbell , Sarah Dixon, Molly Flatt, Rebecca
Maisey, Agnes Nairn , John Robinson, Theresa Santos, Debbie Towersey, Paul Wakely, Kelda Wallis.
Twitter: @temperouk