Legal Problems with User-Generated Content: Part 2

Data Protection

Current software makes it very easy for anyone who runs a website to collect users’ data. But the seemingly innocuous process of asking visitors for names, addresses, emails and other such information presents serious legal responsibilities.

The first responsibility of any website owner who collects personal information is to register with the Information Commissioner’s Office as a “data controller”. As soon as you store any individual’s personal data, you become a data controller within the definition of the Data Protection Act 1998. This legislation contains eight principles relating to the processing of data and anyone involved in dealing with personal data should seek advice on how to comply with these.

Defamation
If you host any kind of message board - or a site that has any capability for allowing users to publish comments about each other or about other people - you should be aware of the potential for defamation, which in its written form is referred to as libel. There have already been several successful libel actions in relation to comments posted on message boards. In Keith-Smith v Williams [2006], Tracey Williams was ordered to pay £10,000 in damages to a former UKIP candidate, after falsely accusing him of being both a racist and a sex offender.

Nor is it possible to hide behind the web’s veneer of anonymity in order to make defamatory statements. Notwithstanding a website’s obligations under data protection legislation, where libel is alleged, they can be forced to hand over personal details. In Applause Store Productions Ltd v Raphael [2008], the defendant, Grant Raphael, had created a fake Facebook profile that made false and damaging allegations relating to the business and sexual activities of north London businessman Matthew Firsht. Raphael was caught after Firsht’s lawyers obtained a court order requiring Facebook to reveal the email address, login details and IP address of the person who had created the profile.

So if you’re not planning to libel anyone, why should this concern you? The reason why libel is such a serious concern for website owners is because libel law attaches liability not only to the person making the defamatory statement, but also to those who facilitate the dissemination of the statement. This means that editors, moderators, websites and even ISPs can be sued for defamation that takes place online. Web site owners should be aware of the provisions of the Defamation Act 1996 requiring publishers (including websites) to take “reasonable care” and take appropriate measures, especially in terms of having systems in place to remove content if it is discovered to be potentially libellous.

Illegal, or just abusive?

Thankfully, genuinely defamatory statements are not as common as one might think. The kind of abuse and name-calling that can often be seen in Internet chat rooms does not generally constitute defamation since such material does not generally contain false factual claims that will harm a person’s reputation. While freedom of speech is fairly well protected in the UK in terms of criminal law, there are some restrictions on it and anyone hosting online discussions or exchanges of opinion must be aware of these.

Despite widespread concern about “cyber bullying” and “offensive” material or ideas published online, very little hateful material is actually illegal. Most examples of the kind of material that constitutes “cyber bullying” do not in itself lead to civil or criminal liability, although it may harm your site’s reputation if you allow such material to be posted unchecked. However, if the content of the offensive material displays discrimination based on gender, sexual orientation, race or religion, there is potential for civil and criminal liability under legislation such as the Race Relations Act 1976 and the Sexual Discrimination Act 1975.

At the most serious end of the scale, s3 of the Terrorism Act 2006 refers specifically to Internet activity in its criminalisation of encouragement to engage in terrorism and dissemination of practical terrorist material (for example bomb-making instructions). Were anyone to post such content on your website, you would need to report it to the police and to the Home Office and act quickly in removing it. Anyone who does not remove such material within two days of receiving a police notice can be punished with up to seven years imprisonment for “endorsing” terrorist material.

Intellectual Property

As owner of the YouTube website, Google is currently being sued to the tune of $1bn in the United States for copyright infringement by media company Viacom. The basis of Viacom’s case is not that the owners of YouTube actually copied movies and music themselves and sold this material to customers, but that they ran a business, according to papers brought before the court by Viacom’s lawyers “with the unlawful objective of profiting from the ‘truckloads’ of infringing videos that flooded the site“. This follows a similar action by the Premier League in relation to the hundreds of football matches that had been posted on YouTube.

There are, of course, many differences between our legal system and the US regime, but when it comes to infringement of intellectual property online, a similar principle applies in the UK. Allowing others to infringe IP rights such as copyright and trade marks can lead to liability for web sites. Furthermore, facilitating the infringement of intellectual property can sometimes be penalised even more severely than the act of infringement itself. It is also worth remembering that owners of intellectual property in the UK are empowered by the tough sanctions laid down in the Digital Economy Bill. As I explained in March’s e-wire, these include the ability to cut off the internet connections of online infringers.

It is for these reasons that sensible owners of websites featuring UGC now monitor new postings closely and take fast, proactive measures when infringement of intellectual property is alleged. Only a few weeks ago, one of our firm’s clients contacted Facebook alleging infringement of the trade mark we had registered for them by the owner of a group on the site. Facebook proceeded to close the group down. This was a good example of the powerful effect that proper registration of one’s intellectual property can have, both on infringers and on potential facilitators of infringement.

If you host a website that features UGC, we will be happy to advise you on precautions you can take to avoid liability for infringement or the other pitfalls discussed in this article. We can also protect your intellectual property by applying to register it for you, and are also ready to advise you if you believe that someone is infringing your existing trade mark copyright, patent or design.

For advice on any of the matters raised, please contact Chris Elwell-Sutton (ces@silvermansherliker.co.uk) or IP Partner Dennis Lee (dktl@silvermansherliker.co.uk) or call +44 (0)20 7749 2700