21 July 2020
Companies are increasingly turning to user-generated content (UGC) in order to boost their social media presence.
Getting your customers to create content for your company can increase your reach and brand engagement.
But this sort of campaign is fraught with legal pitfalls. Without due consideration of copyright and privacy issues, reposting or publishing your customers' content can result in legal trouble.
UGC comes in many forms, such as comments under a blog post and posts on a message board.
In this article, we'll be focusing on UGC created as part of a social media campaign. Typically, such campaigns involve a contest or a product giveaway. They're a great way to get customers involved in your brand.
Some ways to increase your brand's reach by using a social media UGC campaign include:
Let's look at some examples.
Here's a Tweet from Domino's Pizza inviting customers to submit poems as part of a contest:
Poems created by the public as part of this contest are UGC.
Here's another example from Customized Girl:
Customized Girl invites users to take selfies while holding its products. These selfies qualify as UGC.
Given the open nature of social media and the willingness of customers to create UGC, you may be surprised to hear that such campaigns bring up a number of legal challenges.
Here are some of the legal issues that can come up during this type of campaign.
Users retain the copyright to their content by default, even if it is related to or inspired by your brand.
If you want to repost or publish UGC, you must take steps to ensure you're not violating users' copyright.
But it's not always clear how best to do this.
For example, take a look at this attempt by Disney to avoid committing copyright violation in one of its UGC campaigns:
This tweet was widely mocked by lawyers and Star Wars fans alike for its defensive and legalistic tone.
But there's a reason Disney was so keen to claim ownership over its users' content. The company wanted the freedom to publish the UGC on its social media feeds, website, and elsewhere.
Users who submitted UGC in reply to Disney's tweet might not have expected Disney to republish their content. Providing a disclaimer like this is one way of making them aware of Disney's intentions.
However, there are better ways of avoiding copyright infringement, as we'll see below.
The nature of the internet means that some users may submit offensive or inappropriate content as part of your UGC campaign.
On social media, the user on the platform is normally legally accountable for this sort of content. But reposting offensive content can leave your company in violation of a social media platform's Terms of Service, or even in violation of the law.
However, you can guard against the creation of offensive, inappropriate, or abusive content when creating your UGC campaign. And you can also take care when selecting content for republication.
When your company collects, uses, stores, or shares personal information, even via social media, it may be accountable under privacy law.
Laws such as the California Consumer Privacy Act (CCPA), Canada's Personal Information and Electronic Documents Act (PIPEDA), and EU General Data Protection Regulation (GDPR) place strict rules on how companies treat consumers' personal information.
Without proper consideration of the privacy issues, it is possible to violate privacy law by reproducing UGC that contains personal information, or publishing the personal information of the user or third parties.
Defamation law is a complicated area, and varies considerably between countries.
It is possible, under certain circumstances, for a business to be held liable for defamatory content created by its users.
For example, in a case heard by the European Court of Human Rights, Delfi AS v Estonia, users made defamatory remarks in the comments section of a news website.
The website operator was found to have committed defamation even though it removed the comments.
This is less of an issue on social media, where, for the most part, either the user or the social media platform itself will be accountable for such activity.
But it's still important to be careful about what you publish and repost.
Despite the legal issues outlined above, a careful and considered approach to your UGC campaign should allow you to steer clear of litigation.
You should create Terms and Conditions specific to the UGC campaign you're running. This is especially important if you're running a contest, or if you intend to publish the UGC you receive outside of social media.
Above, Disney attempts to minimize the likelihood that entrants will submit offensive or inappropriate UGC by telling people they may not submit defamatory, harassing, threatening, bigoted, hateful, violent, vulgar or obscene content.
If you've spent much time on the internet, you'll know that this is, sadly, necessary.
To avoid copyright issues, you should make users aware of your Terms and Conditions at the earliest possible opportunity.
Here's how Domino's Pizza does this on Twitter:
Note that Domino's Pizza links to its Terms and Conditions as a reply to its main competition tweet. Ideally, this link would appear in the main body of the first tweet.
Although you should always present your Terms and Conditions to your users when publicizing your UGC campaign, it probably won't be possible to get users to actively agree to your terms before they create their UGC.
For your Terms and Conditions to be legally binding, your users need to actively agree to it.
If you do encounter legal issues as a result of your UGC campaign, simply having made users aware of your terms is unlikely to be sufficient. Therefore, once users have submitted their UGC, you should still contact them to get their permission before you publish it.
Send a direct message to any user whose UGC you plan to repost or publish:
✓ They're legally required: Privacy Policies are legally required by global privacy laws if you collect or use personal information.
Excerpt from TermsFeed Testimonials:
Users may submit personal information when creating UGC. This might include their name, their handle/alias, or personal details.
This is particularly important if you have users in the EU or the UK, where the GDPR requires businesses to maintain very detailed Privacy Policies.
Here's how WaterWipes does this:
One way around copyright issues is to ask your users to accept a licensing agreement. This serves to grant you certain rights to use and publish their content.
Licensing agreements are typically used by software developers to grant users the right to use their software (known as an End-User License Agreement or EULA). In this case, you will be asking your users for a license to publish their content.
Here's an example, from the UGC Policy of Treatwell:
Note that Treatwell asks users to grant the company permission to publish their UGC, and also to warrant that they have obtained any necessary permissions from third parties.
UGC campaigns on social media are a great way to create a buzz around your brand.
The main legal issues that can result from these campaigns include:
To avoid these issues, make sure that you:
This article is not a substitute for professional legal advice. This article does not create an attorney-client relationship, nor is it a solicitation to offer legal advice.