user-generated content and the law
DESCRIPTION
Is your social media activity breaking the law? This free guide from moderation company Tempero makes sense of current, and upcoming, regulations in the UK.TRANSCRIPT
UGC and the law
We stay up at night so you don’t have to © Tempero Ltd 2010 / Page 1 of 48
User-generated Content &
The Law February 2010
UGC and the law
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CONTENTS
Introduction .............................................................................................................................................. 3
To moderate or not to moderate? ............................................................................................................. 4
General ..................................................................................................................................................... 5
Jurisdiction ...................................................................................................................................................... 5
Contempt of Court .......................................................................................................................................... 8
Employee Use of Social Media ..................................................................................................................... 11
Getting Personal ..................................................................................................................................... 14
Online Privacy ............................................................................................................................................... 14
Data Protection ............................................................................................................................................. 17
Defamation ................................................................................................................................................... 20
Getting Nasty .......................................................................................................................................... 23
Abuse, Hate Crimes, and Terrorism .............................................................................................................. 23
Harassment and Cyber-Bullying ................................................................................................................... 27
Obscenity ...................................................................................................................................................... 30
Child Protection ............................................................................................................................................ 33
Business Matters ..................................................................................................................................... 37
Copyright, Trademarks, and Intellectual Property ....................................................................................... 37
Competitions ................................................................................................................................................ 41
Marketing and Advertising ........................................................................................................................... 43
Summary and Credits .............................................................................................................................. 48
UGC and the law
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Dominic Campbell, FutureGov Consultancy
“
Working with colleagues in the public sector, there is an understandable level of 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.
”
INTRODUCTION
From Dominic Sparkes, MD of Tempero 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!
UGC and the law
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Jon Bishop, Gumtree
John Robinson, NHS Choices
“
When preparing to engage in UGC, expect the unexpected and be as comprehensive as 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.
”
TO MODERATE OR NOT TO MODERATE? Last year alone we resourced the equivalent of over 14 years in moderation hours so you’d think we always advocate professional management of communities. Actually, that’s not always the case, and ironically, there may be greater liability associated with moderated environments as the operator assumes responsibility for content which appears on a site that’s hosted, or even editorially approved by them. 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.
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Danvers Baillieu [1]
“
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.
”
JURISDICTION
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 geographical region in which a law can be enforced.”
The Law The United Kingdom is divided into three legal jurisdictions.
English law English law has jurisdiction over England and Wales.
Scots law Scotland has retained a different legal system from England and Wales but is effected by European Law and the ECHR.
Northern Ireland law Northern Ireland has had its own legal system since its creation as a separate country within the United Kingdom.
European Union law Has direct effect over all EU member states.
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In The News
A US Games company is currently suing a British blogger in the Australian courts. If successful the case will have repercussions on how law applies to the
social web around the world. [2]
The National Portrait Gallery in London is taking legal action against a US user who copied pictures of paintings from their website and uploaded them to US site Wikimedia.
The defendant argues UK copyright law is
not applicable. [3]
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What You Need To Know You cannot protect yourself in all jurisdictions
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
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Baroness Scotland [1]
“ 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.
”
Contempt of Court
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.
Contempt of Court Act 1981 [2]
There are two forms of contempt of court:
1. Statutory contempt of court criminalises the publication of material which creates a risk that the course of justice would be seriously impeded or prejudiced;
2. Common law contempt targets any other action which is intended to interfere with justice or imminent court proceedings.
Electronic Commerce (EC Directive) Regulations 2002 [3]
Lack of knowledge of the content that is breaching a court order would protect ISPs.
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In The News
Throughout the Baby P trial groups used social networking sites, like Facebook, to blatantly break court orders. This and other similar incidents have highlighted the struggle to enforce the Contempt of Court Act
1981 in a new media world. [3]
In 2001 ISP Demon Internet successfully argued they could not be held in contempt for protected information posted on its web pages in relation to the James Bulger case.
Previously Demon had been the first ISP sued for libel for being too slow to remove defamatory comments posted in a chat room
after being contacted by the complainant. [4]
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What You Need To Know 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
You must respond to a take-down order in a timely fashion
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
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Debbie Towersey [2]
Danvers Baillieu [1]
“ 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.
”
“
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.
”
EMPLOYEE USE OF SOCIAL MEDIA
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.
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].
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In The News
Vodafone UK shocked everyone by sending out an offensive Tweet in February 2010. The company confirmed their account was not hacked and the tweet was sent by a staff member
who was later suspended. [3]
In June 2009 the HabitatUK twitter feed featured popular “hash tags” posted with unrelated promotional tweets to increase their likelihood of being seen alongside conversations like #Iranelection and #Apple
Habitat publically apologized saying the tweets were not approved by the team and were the
work of an “over enthusiastic” intern. [4]
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What You Need To Know A company will normally be held responsible for content posted by an employee
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 NMK: Rough Guide to social media and the law: http://www.nmk.co.uk/articles/1040 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
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Nick O‟Neill [1]
“ 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.
”
ONLINE PRIVACY
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.”
Law and guidance Privacy does not have specific protection in UK law; but privacy is protected in a number of ways.
European Convention on Human Rights [2]
The UK adheres to Article 8 of the ECHR, which protects privacy robustly. However, the Human Rights Act 1998 only binds public bodies, and not individuals, so there still is no general right to protection from invasion of privacy by other individuals in society.
Privacy and Electronic Communications Regulations 2003 [3]
The Directive on Privacy and Electronic Communications requires Member States to ensure confidentiality of the communications and related traffic data by prohibiting unlawful interception and surveillance.
Common Law ‘right to confidence’ [4]
This common law right has been established in the English courts in relation to obtaining or publishing unauthorised information (or photographs) where a ‘duty of confidence’ exists.
‘Duty of Confidence’ [5]
Aside from the obvious applications in Law, Health Services, and contractually, privacy can be protected by fair and reasonable expectation that information was obtained confidentially. This confidence would be breached via unauthorised use of that information, to the detriment, of the owner or subject of that information.
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In The News
Two Germans convicted of murder in 1990 attempted to sue Wikipedia for invading privacy by publishing their names.
The law in Germany upheld their complaint but the US has much stronger supports for Freedom of Speech, rendering German
privacy laws effectively meaningless. [6]
Facebook are continually pushing the boundaries regarding user's privacy.
They are currently defending several claims in
the US on privacy violations. [7]
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What You Need To Know 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 Liberty – Your Rights Liberty is an independent human rights organisation which works to defend and extend rights and freedoms in England and Wales. This site is their online guide to human rights law in England and Wales http://www.yourrights.org.uk
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
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Danvers Baillieu [1]
“ 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!"
”
DATA PROTECTION
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.”
Law and guidance Both the UK and European Union have clear regulation in the area of collection and use of personal data.
Data Protection Act 1998 [2]
Relevant laws are many but the principle one is the Data Protection Act 1998. It contains eight Principles which Data Controllers (anyone storing personal data) must adhere to.
Privacy and Electronic Communications (EC Directive) Regulations 2003 [3]
The Directive provides guidance on the sending of unsolicited direct marketing.
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In The News
In 2007 Judges in Cologne, Germany, rejected a suit filed by a secondary-school teacher who felt her data protection rights were being violated by an online reviews site.
It was rejected on the grounds that grading teachers on the Internet is covered under
the basic right to free expression. [4]
The topic for 2010’s Safer Internet Day was ‘Think B 4 U post’.
The event encouraged greater awareness and responsibility for the publishing of
your own data online. [5]
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What You Need To Know 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 Ensure you are registered as a “Data Controller”
Have regular checks of your database and clear out old data
Review your systems regularly to ensure data is being stored securely. You also have to ensure suppliers who have access to or are responsible for holding data are compliant
If you want to use data you collect for more than the most basic purposes, check the law
Further Reading
Useful Links Information Commissioner's website: http://www.ico.gov.uk/ 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
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John Robinson [1]
“ 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
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
“Any statement which hurts an individual’s reputation.”
The Law There is one key act regulating defamation
The Defamation Act 1996 [2]
Last updated in 1996, the Act covers some specific internet principles, but look to previous trial outcomes for further examples of social media permeations.
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In The News
Michael Keith-Smith, a former UKIP candidate, sued Tracy Williams after a debate on a Yahoo! Message board turned ugly.
Keith-Smith won the case establishing it as the first successful British prosecution of an individual in a chat room (not a site owner or
ISP). [3]
2008 Research by YouGov found three quarters of internet users who comment online realise they could be breaking libel laws.
Only one in three said they’d read the
terms and conditions of a site. [4]
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What You Need To Know You could be held responsible for anything posted on your site
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
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Danvers Baillieu [1]
“ 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.
”
Lord West [2]
“ 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. ”
ABUSE, HATE CRIMES, AND TERRORISM
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.
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.”
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Laws and guidance 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:
The Terrorism Acts 2000 and 2006 [3]
Made it illegal to possess or share information that could be useful to terrorists, share information that urges people to commit or help with acts of terrorism or, glorifying (praising) terrorism decision.
Illegal terrorism content
Any information that is intended to be useful to terrorists is illegal, including:
bomb-making instructions
guides to making poisons
instructions on how to make weapons
guides to targets
Illegal violent extremist content
Some violent extremist content is also illegal. This includes:
videos of beheadings with messages of ‘glorification’ or praise for the attackers
speeches or essays calling for racial or religious violence
messages intended to stir up hatred against any religious or ethnic group
chat forums with postings calling for people to commit acts of terrorism
Illegal hate content
Illegal hate content includes:
messages calling for racial or religious violence
web pages that show pictures, videos or descriptions of violence against anyone due to their race, religion, disability, sexual orientation or gender identity
chat forums where people ask other people to commit hate crimes
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In The News
In early 2010 Teeside police vowed to clamp down on hate crimes due to recent targeting through social networks.
Matt Fowler of the Safer Middlesborough Partnership said “We also have evidence of the internet being exploited by those who want to
spread messages of hate.” [4]
In February 2010 a conviction from 2007 under the Terrorism Acts was overturned.
Mohammed Atif Siddique had been charged in relation to viewing and disseminating information online. His lawyers claimed the
ruling as a victory for freedom of speech. [5]
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What You Need To Know Most hateful or violent website content is not illegal
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
Website administrators must be clearly contactable
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 DirectGov Reporting Hate, Extremism, and Terrorism online: http://www.direct.gov.uk/en/CrimeJusticeAndTheLaw/Counterterrorism/DG_183993
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
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Kiri Fuller [1]
“
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. Read more: http://www.thesun.co.uk/sol/homepage/woman/real_life/2564956/Three-victims-talk-about-cyber-bullying.html#ixzz0fz44nzmS
”
HARASSMENT AND CYBER-BULLYING
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.”
Laws and guidance 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
Protection from Harassment Act 1997 [2]
Primarily created to provide protection from stalkers. The person pursuing the course of conduct called in to question must know, or ought to know, their behaviour amounts to harassment.
Part 1 of the Criminal Justice & Public Order Act 1994 [3]
Outlines the offence of causing intentional harassment, alarm or distress.
Sex Discrimination Act 1975, Race Relations Act 1976, Disability Discrimination Act 1995 [4]
Can have legal application to harassing behaviour.
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In The News
A California Court ruled that a school went too far in suspending a student who allegedly posted a bullying video on YouTube.
The decision was based on the act being outside school activities and a person’s right to free speech. (Online commentators wondered where
defamation might apply in a case like this). [5]
Also in the US, Congresswoman Sanchez, is leading a bill to combat cyberbullying.
Free speech campaigners and many online writers are opposed to the bill which is seen as too broad and could potentially make it illegal to criticise or
make fun of anybody online. [6]
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What You Need To Know Content which is discriminatory should be removed once noticed
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
Don’t confuse abuse with defamation or libel
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
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Professor Ian Walden [1]
“ 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.
”
OBSCENITY
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.”
Laws and guidance
Criminal Justice and Immigration Act 2008 [2]
Refers to the possession of an extreme pornographic image, indecent photography of children, and publication of obscene articles.
Obscene Publications Act 1959 [3]
Outlines publishing restrictions.
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In The News
At the end of 2008 the UK’s access to a Wikipedia page was blocked by the IWF.
The organization had taken exception to an album image of a prepubescent girl. After discussion with the Wikimedia Foundation, and the undue attention the image began to
receive, the decision was reversed. [4]
The 2008 updates to the Criminal Justice Act were opposed by communities. People involved in bondage, discipline, and sado-masochism felt they may become
unfairly criminalised. [5]
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What You Need To Know Laws are focused on distribution and consumption of obscenity
Take-down notices must be responded to in a timely fashion
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 Internet Watch Foundation: http://www.iwf.org.uk/ Child Exploitation and Online Protection office: http://www.ceop.gov.uk/ Who is hosting this? http://www.whoishostingthis.com/
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
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Information Commissioner [1]
“ 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. ”
CHILD PROTECTION
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.”
Laws and guidance Laws which could apply to Child Protection
Data Protection Act 1998 [2]
While not specifically referring to young people the Information Commissioner's Office (responsible for implementing legislation) indicated: “Websites that collect information from children must have stronger safeguards in place to make sure any processing is fair. . . If you ask a child to provide personal information you need consent from a parent or guardian, unless it is reasonable to believe the child clearly understands what is involved and they are capable of making an informed decision.”
Sexual Offences Act 2003 [3]
Designed to make it illegal to 'groom' children, which is when adults approach children with the intention of committing a sexual offence. It includes grooming activities in online environments. Under the Act it is an offence for anybody over 18 to befriend a person younger than 16 and then meet or intend to meet that young person anywhere in the world with the intention of sexually abusing them.
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Protection of Children Acts [4]
(1978) Prohibits the creation and distribution of indecent photographs of children.
(1999) This stipulates employers have to report any misconduct in the area of child protection by employees.
Safeguarding Children and Vulnerable Groups Act 2006 [5]
Updated October 2009 to include vetting and barring procedures for moderators of online message boards and interactive environments.
Safer Social Networking Principles for the EU [6]
Best practice guidelines for brands and service providers in the area of child safety in interactive environments.
Children's Online Privacy Protection Act of 1998 [7]
US websites collecting information from children under the age of thirteen are required to comply with United States Federal Law.
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In The News
2008 lawsuit filed by US Federal Govt against Sony Music Entertainment for improperly accepting registrations from users under 13.
Sony paid a $1 million dollar civil penalty and
agreed to improve processes. [8]
During late 2007 and 2008 the media reported stories about teen parties which had been trashed by gatecrashers.
Following this news story further news articles began a debate about some central safety issues including, hacked accounts, keeping passwords safe and the need for parents to become familiar with
their teens online activities. [9]
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What You Need To Know 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 We recommend if you are hosting any user info:
Make a risk assessment if your service or interaction specifically targets children and young people
Advice includes having escalation procedures and training staff in identifying abusive behaviour
Follow the guidance
Further Reading
Useful Links Internet Task Force on Child Protection: http://www.ceop.gov.uk/ UK Council for Child Internet Safety: http://www.dcsf.gov.uk/ukccis/
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
9 J Mills “Couple’s £1.5m house trashed after hundreds of Facebook gatecrashers storm daughter’s 16th
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
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Danvers Baillieu [1]
“
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.
”
COPYRIGHT, TRADEMARKS AND INTELLECTUAL PROPERTY
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).”
Laws and guidance
Copyright, Designs and Patents Act 1988 [3]
Also known as the CDPA, this forms the basis of copyright law.
UK Trade Marks Act 1994 [4]
The law governing trademarks in the UK.
Directive 2000/31/EC of the European Parliament 'Directive on electronic commerce' [5]
The basic legal framework for electronic commerce in the Internal Market.
Creative Commons [6] Creative Commons is a not-for-profit organisation which provides creative licenses for users to mark creative works and specify other users’ rights to use; both personally and commercially.
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In The News
Photographer Richard Giles was at the centre of controversy when the International Olympic Committee (IOC) sent take-down notices to Flickr users who posted pictures of the Olympic Games.
The IOC strictly prohibits photography at their events. Olympic identifications such as the Olympic rings, the emblems, mascots, use of the word ‘Olympic’, and imagery of the games belongs to the
IOC and cannot be used without written consent. [7]
A US Court dismissed damages claims against YouTube by the Premier league.
The judged ruled that copyright damages were
not available for foreign unregistered material. [8]
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What You Need To Know Copyright protection is automatic. No contract needs to be signed for a creator to have entitlement to
control how their work is distributed
However, if you register your works it could make it easier to protect it
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
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Further Reading
Useful Links European Observatory for Counterfeiting and Piracy: http://ec.europa.eu/internal_market/iprenforcement/observatory/index_en.htm 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 The World Intellectual Property Organisation: http://www.wipo.int/portal/index.html.en 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
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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.”
Laws and guidance
The UK Gambling Act 2005 [1]
Clearly outlines definitions, requirements, and the consequences of breaches.
CAP Code - Sales Promotions Rules [2]
33.1 Promoters should take legal advice before embarking on promotions with prizes, including competitions, prize draws, instant win offers and premium-payment promotions, to ensure that the mechanisms involved do not make them unlawful lotteries.
What You Need To Know For UK businesses running an illegal lottery is a criminal offence
Laws also vary in different countries so take this into account
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
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In The News
At the end of 2009 Facebook amended its Promotions Guidelines.
The move is believed to be an attempt to crack down on poorly run and illegal competitions
on the popular social network. [3]
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Agnes Nairn [1]
“
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.
”
MARKETING AND ADVERTISING
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.”
Laws and guidance A general ban on “unfair practices” exists to ensure resilience in fast evolving markets.
Consumer Protection from Unfair Trading Regulations 2008 [3]
UK regulations applying to both on-and off-line activity.
Business Protection from Misleading Marketing Regulations 2008 [4]
Protects predominantly from misleading advertising but commercial social media activity could also be classified under these regulations.
The British Code of Advertising, Sales Promotion and Direct Marketing (CAP Codes) [5]
The Codes of Practice governing the industry and administered independently by the Advertising Standards Authority.
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1984 European Directive on Misleading Advertising (Directive 84/450/EEC) (Directive 2005/29/EC) [6]
EU regulations applying to both on-and off-line activity.
EU Unfair Commercial Practices Directive 2005 [7]
Outlines ‘sharp practices’ which will be prohibited throughout the EU, such as misleading and aggressive marketing. Updated in 2007 to include things like ‘astroturfing’.
The Privacy and Electronic Communications (EC Directive) Regulations 2003 [8]
The ICO has guidance for marketers on this directive, it mainly effects email marketing but could relate to direct contact with consumers via social sites.
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In The News
Blogstorm's Patrick Altoft identified some odd comment activity on his own blog and across the web. I-Spy search agency immediately issued a statement claiming responsibility, apologized to the blogs involved, and put in internal measures to ensure it
wouldn’t happen again. [9]
1,000 iPhone apps were pulled by Apple in December 2009 amid claims the developer had faked positive reviews about their products.
This was not the first accusation of fake app reviews in 2009. In the US the Federal Trade Commission (FTC) are looking to extend their
reach into the blogosphere. [10]
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What You Need To Know 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
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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 Advertising Standards Authority: http://www.asa.org.uk/ Committee of Advertising Practice: http://bcap.org.uk A full list of relevant laws is on the CAP website: http://bcap.org.uk/The-Codes/CAP-Code/CAP-Code-Item.aspx?q=CAP+Code_Legislation
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
UGC and the law
We stay up at night so you don’t have to © Tempero Ltd 2010 / Page 48 of 48
Molly Flatt, WOM UK
“
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.
”
SUMMARY
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. For further information: Tempero Ltd 14-16 Great Portland Street London W1W 8QW United Kingdom Telephone: +44 (0)20 7636 1200 Email: [email protected] Twitter: @temperouk