The Highs and Lows of User-Generated Content

So what exactly is UGC? Until recently almost all forms of media had something in common. Content was created by professional content makers – be they journalists, film-makers or website editors – and consumed by viewers, listeners or readers whose role was essentially a passive one. Now, a very different model exists. To a greater and more fundamental extent than ever before, the public is directly, actively involved in the media. A 2007 paper by Wunsch-Vincent and Vickery laid down three typical characteristics of UGC: publication, creative effort and creation outside of professional routines. Put simply, this means that UGC tends to be publicly accessible, to involve a creative element on the part of the user and to have been uploaded in an “amateur” capacity, rather than by someone whose job it is to upload such content. There are exceptions to these rules, but they provide a reasonable working definition.

Sites with a significant UGC element range from blogs, wikis and sites like Amazon where users are encouraged to offer feedback and write reviews, to social networking sites like Facebook, content sharing sites like YouTube and virtual worlds such as Second Life.

This newly democratised media landscape – where anyone with internet access can join in, have their say and be part of the story – is an exciting place for users. Social networking has enhanced the social lives of millions, brought people together in online communities and for some, has strengthened the bonds of friendship and family. Other online platforms have enabled musicians, film-makers and other creative people to exchange ideas and showcase their work.

For those who run websites that feature UGC, however, these are unsettling times. Minimal editorial control and apparent anonymity gives users a great deal of power without the accountability that accompanies conventional publishing. The wrongs that can be facilitated by UGC range from flagrant plagiarism and copyright infringement to libel, cyber-bullying, contempt of court, sexual grooming and even terrorist activity.
Despite all the unsavoury activities that UGC can facilitate, the Internet is no longer the lawless place it once was. Increasingly, heavy responsibilities and potential liabilities fall on the shoulders of those who host the sites.

The first important issue to consider in this regard is jurisdiction. In terms of civil litigation such as libel actions, courts currently have a great deal of leeway in deciding jurisdiction. As online law expert Danvers Baillieu told a recent study by internet moderation company Tempero: “The general rule is that any jurisdiction which has a clear connection to a dispute will hear a case.” The impact of UGC on civil litigation will be discussed further in the second instalment of this article.
In matters in which the state itself takes action, things are toughening up. The days when Britons hosting websites offering illegal material could avoid punishment by using overseas servers are over. The Digital Economy Bill, which becomes law year, contains draft provisions allowing the Secretary of State to block access to sites, regardless of the territory in which their hosts may reside.

There has been a perception in recent years that injunctions and other court orders in relation to privacy have been rendered irrelevant by UGC. There is certainly a deep tension between sites featuring UGC and a legal system with its roots in the age of the printing press. One of the reasons for the lifting of the injunction prohibiting publication of details of John Terry’s private life, for example, was the fact that the details of his extra-curricular activities had already been tweeted extensively on Twitter.

Of greater concern, from the point of view of justice, is the prejudicial effect that online breaches of court orders may have on criminal trials. At the time of the Baby P trial, for instance, Facebook groups and other online hosts of UGC featured pictures of the child’s attackers despite court orders preventing their publication. Publishing such material puts the publisher in contempt of court – a serious offence. However, Demon Internet established in a 2001 case that service providers may not be held in contempt of court if they can demonstrate that they were unaware of the publication of the material in question, or were powerless to stop it. Taking the material down promptly can also help those who host sites where material that breaches a court order.

Actual prosecutions for contempt in such a context are rare. Nonetheless, the Attorney General claims that this is all about to change. According to Baroness Scotland: “We are taking down names and addresses from the Internet and working with service providers. People may think they can get away with breaching court orders but I wouldn’t mess around if I were them.” Despite such tough talk, whether such court orders can really be enforced remains to be seen.

In part 2 of this article next month: Data Protection, defamation, privacy, employers’ liability and criminal activity online.

Chris Elwell-Sutton is undertaking a trainee seat in our Intellectual Property department.  For advice on any related matter, please contact any of the IP Team:

Dennis Lee: dktl@silvermansherliker.co.uk
Fiona Rodgers: fcr@silvermansherliker.co.uk
Neil Eagleton: nde@silvermansherliker.co.uk
Robert MacGinn: rm@silvermansherliker.co.uk
Chris Elwell-Sutton: ces@silvermansherliker.co.uk

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