Does user generated content mean user generated trouble? Yes, possibly, but how do you minimise risk?

The shift from content production being the sole domain of professional broadcasters, websites, and advertising agencies towards user-generated content (UGC) has opened up those hosting and distributing the content to a variety of legal risks.

High profile websites such as MySpace, Bebo and YouTube have shown the huge appetite the public has for presenting and viewing each other’s creations. But they have also highlighted the risks associated with the general public uploading content that may include unlicensed copyright material, particularly music or films, or may be defamatory or obscene. Other sites such as Second Life or online games like Animal Crossing risk in-game characters and items being created that could also be defamatory or in breach of third party rights by, for example, parodying well-known cartoon characters or action heroes.

So what can be done about these risks? If UGC is to be made available on a website, it’s sensible for the website operator to have terms of use including warranties that no submitted material will infringe copyright, or contain obscene, defamatory or otherwise unlawful material. A prominent method by which other users can complain about content on the site, which is then acted on quickly, can also avoid problems.

There is a difference between merely hosting such content, as in the case of an internet service provider, and the distributor being able to exercise some editorial control over it, as on a site such as YouTube. Where the website operator can show it simply stored the UGC with no actual knowledge of intellectual property infringement or other illegality, and removed offending UGC promptly on demand, having no control over the relevant user, the operator may be able to rely on the Electronic Commerce (EC Directive) Regulations 2002 to shield it from liability.

So robust terms of use combined with a watchful eye (in the form of a technical filter or one of the growing number of human moderation companies) would be advisable for anyone intending to enter into the wonderful but whacky world of UGC.