Thinking Aloud About User Gen and Publisher Liability
Important Details: It’s a truism of the internet age: less and less content being published by traditional publishers comes from their own paid staff, and more and more content comes from, well, amateurs. With legacy revenues challenged, lots of publishers have fewer staff than they had last year. And those amateurs, how their ranks have grown! Amateurs, of course, range from highly expert community professionals, from nurses to astronauts, to growing-like-topsy community comment, seemingly enabled everywhere you go on the web. And most amateurs contribute content for free, or, if not, get paid far less than staffers.
We’re not in the Kansas of traditional publishing anymore, Toto.
Out of this booming, buzzing confusion, publishers have had to figure out on the fly what standards to apply to all this amateur content. Editorial standards are one thing – and that discussion can play out endlessly.
Lately, though, in talking with clients, Outsell has heard numerous questions about the potential legal liability of using content produced by non-staffers. Of course, the liability question used to be easy: publishers employed staffers and freelancers. Everyone in the operation knew the traditional risks of publishing – defamation, trademark, copyright, privacy, etc. – and acted accordingly.
Now with the blogosphere a key part of the new landscape and user-gen content taking many forms, it can be puzzling which rules have changed and which haven’t.
Outsell has talked with a number of those in the industry, in both operational and legal roles to get a sense of liability concerns, and how companies are dealing with them. It’ s always good to review such issues, from time to time, internally – here’s Outsell’s quick take on what they should be considering. It’s not legal advice, of course, just a series of pointers to facilitate internal discussions. And the old maxim – it depends – is a clear one in this settling, but still unsettled area.
That said, here’s what we’ve found in the US. (Laws on defamation, trademark, copyright, privacy vary markedly by nation and within the EC.)
- Publishers’ responsibility for their own employee or freelance-paid contribution remains. As employees increasingly blog on their employer newspaper websites, their work will probably be treated as employee work, even given the “blog” format. Many publications are rapidly increasing their employee blog post output, and it’s worth thinking about how much more light an edit these pieces get.
- Most court cases differentiate between traditional publishers’ staff-based publishing and publishers’ new role as carriers of non-staff discourse. Generally, companies running sites where users can post are not liable for a number of offenses committed by non-staffer posting. In general, the law is concerned with the creator of the content – not its distributor. As publishers offer community members commenting power, they are essentially providing a platform or delivery mechanism for others’ messages. Operative laws here include Communications Decency Act of 1996 and the Digital Millennium Copyright Act, which both provide protections for carriers as diverse as craigslist and AOL (in the Matt Drudge case), intended to allow a freer flow of public posting and comment. Several court decisions have reinforced the notion that when traditional publishers allow the postings of reader/community items, they, too, are simply carriers of such items. In essence, publishers can be both service providers and content providers.
- The federal acts provide a great measure of protection, but offer the most security when publishers post their copyright and intellectual property policy right on their site. Telling those who feel they may have been wrong how to redress their grievances is key to the protection. Yahoo!’s page is one useful example of best practice here.
- For intellectual property claims, the law places a responsibility on the publisher to respond “expeditiously” if meaningful claims are brought to their attention. Many companies appoint a single agent administrator to receive such claims and bring them to counsel as necessary. It’s worth all companies – big and small – thinking through how legal complaints about “new” content will make their way to the right place in your companies, speedily. Response to legitimate complaint is key, and an important facet of good faith accountability.
- Emerging most recently are questions about visually based user-gen content as YouTube has become a major phenomenon and user posting of photos and videos pose all kinds of interesting questions. Our talks showed that this content hasn’t yet been treated very different legally. That said, the power of an image – moving or still – to cause damage is potentially greater. In addition, it may be more valuable, given the cost of production. Consequently, some websites do more moderation of video and photos than they do of text user-gen submissions.
- How moderate should you be on moderation? There’s no one-size-fits-all answer. On the one hand, publishers are concerned that if they do too much moderation – or pre-approval – they’ll squelch community-building. On the other hand, would too little moderation create more heat than light, and potentially open them up to liability? Most sources say it’s better to do some moderation, and to modulate as you see fit, depending on the discussion and the kind (text, video, etc) of content. Variation in moderation levels hasn’t been much linked to liability. (For a good rundown of current moderation policies at US news sites, check out this recent Editor and Publisher article.)
Implications: Outsell’s take is that this is an area that publishers need to develop confidence in, and that means feeling secure in legal policy and then acting on that operationally. Halfway moves can chill staffers uncertain of how far to proceed, and that may short-circuit big opportunities to gather lots of content cheaply. This issue will only loom larger as cutbacks in professional staff cuts and growth in the booming user-gen world mean that an increasing proportion of publisher “content” will be derived from non-staff, non-professional sources. Getting a handle on what that means – legally, technically, operationally – is a must.