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A Guide to the Legalities Around User Generated Content

Learn the legalities around user generated content and how to make sure you’re doing it right, in this guest article written by TINT.A Guide to the Legalities Around U User Generated Content (UGC) has made a huge impact on the marketing world. We’re talking big here – when 84% of millennials say UGC has influenced their…

Learn the legalities around user generated content and how to make sure you’re doing it right, in this guest article written by TINT.A Guide to the Legalities Around U

User Generated Content (UGC) has made a huge impact on the marketing world.

We’re talking big here – when 84% of millennials say UGC has influenced their purchasing decisions, it’s safe to say it’s extremely influential.

The good news is, there is tons of UGC available to brands across a whole host of platforms.

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Source: volution.com

When more than two billion pieces of content about brands are published by consumers every single day you might think the hardest part about implementing it is choosing what to use and what to throw to the wayside.

But there’s something else that brands need to think about.

UGC is available to the masses, but it comes with some legalities – because, of course, it essentially means you’re using something someone else has created.

Flashback to 2014 when actress Katherine Heigl sued pharmacy chain Duane Reade in a high-profile $6 million case. The reason for her suing? Because they published a picture of her carrying a bag with the pharmacy’s logo on Twitter without her consent.

In the end, Heigl dismissed the charges, but this is a prime example of what kind of sticky situation using UGC without knowing the legalities can get you into.

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So, you know the benefits of UGC (uh, they’re huge, don’t you know?!), but you’re also cowering at the thought of a $6 million legal case. How do you get around it?

Luckily, it is possible to use UGC without the repercussions that Duane Reade faced, but you have to know what’s right and what’s wrong when it comes to using other people’s’ content from Facebook, YouTube, Twitter, Instagram, and other social platforms.

The difficulty with the law around UGC is that it has been slow to evolve.

It has lagged behind the vast amounts of technological change that have taken place over the last few years, and there are very few federal and state statutes that really dive into what rights users have to their content on third-party sites.

So let’s start at the beginning.

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Before You Begin Implementing UGC

Before you even think about publishing photos, videos, and text from consumers, it’s important to set boundaries from the outset – and when we’re talking boundaries, we’re talking the good ol’ “P’ word: permission.

There are two straightforward ways to get a user’s permission.

1. Explicit Permission

Explicit permission is when you get a committed “yes” from a user to re-publish their content. Marketers tend to do this when they run campaigns intended to generate UGC – like a photo competition on Facebook where users have to submit their images especially for the cause.

In the terms and conditions, you can make it clear that, by entering, the consumer is giving you permission to use their content for other purposes.

2. Implicit Permission

Alternatively, you can turn to implicit permission.

This isn’t as open as explicit permission. It’s basically where a system like a campaign hashtag is used as part of a promotion. Users add photos to the hashtag and, by doing so, are giving the marketer permission to reuse their content.

Either way, it’s important that you have clear terms and conditions which state exactly what the user can expect when they upload their piece of content.

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In this example from Krispy Kreme, they invited consumers to hashtag their favourite flavors.

What Happens Outside of Campaigns?

So there might be times where you see an awesome review from a consumer that you simply must use to promote your business – after all, a previous buyer singing your praises is one of the best marketing tactics.

In this instance, however, the user hasn’t submitted their content to a campaign, so there will have been no terms and conditions.

This is when a lot of brands get on the wrong side of UGC laws.

They think that, because the user has posted about their brand, that they’re entitled to use it.

If this is the case, and you come across something that a consumer has created about your brand that isn’t a part of a campaign with T’s and C’s, you need to explicitly ask for permission to use it.

The great thing is, most people will happily say “yes” to a request like this. After all, they tend to put their experiences online for other people to see, and when you share it you’re exposing their content to a larger pool of people.

You might be thinking, “but if they’re putting online for people to see, surely it won’t matter if I share it around to more people?”

This is a very valid stream of thought, but in an age where consumers are more in the know about their rights than ever, it’s important to play it safe.

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“When seeking permission to use content, organizations must be honest with the user about when and how the content will be used, and whether it will be syndicated to other publishers or organizations,” says Susan Etlinger, an Industry Analyst, in this paper. “This issue of informed consent is increasingly important, as users become more sophisticated in knowing their rights.”

Consumers Are in the Know

Because consumers are more in the know about their rights, they are also more in the know about what brands expect from campaigns that generate UGC.

For example, a consumer will likely know that if they contribute to a certain hashtag, the brand that runs said hashtag may very well re-publish their submitted content. Most of the time, the user won’t necessarily need to read the T’s and C’s to know this – it will be implicit, like an unwritten rule.

This makes it easier for brands that are actively looking to re-use content submitted by other people, but it’s not always as cut and dry as this.

Because the laws haven’t quite caught up yet, and because UGC is a fairly difficult thing to monitor, we can only look to a set of suggested practices when it comes to using other people’s content.

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Source: tubularinsights.com

Four Suggested Practices for Law-Abiding UGC

1. Review and Update Your T’s and C’s

We’ll assume here that you already have terms and conditions laid out that highlight what consumers can expect when they contribute content to your hashtag or campaign.

But you need to go further than that. The online world is constantly evolving, so it’s important that your T’s and C’s constantly evolve with it. If you see a copyright incident sweeping the news (like Heigl’s $6 million case), add something to do with it into your T’s and C’s.

The best way to create a decent Terms of Use is to learn as you go and add to it over time.

2. Be Responsive

Even if you have systems in place, there are bound to be times when something slips through the net – it happens to a lot of brands and it doesn’t necessarily mean you’ve done a bad thing. It just means you might need to reconsider how you generate UGC.

If you do get a complaint, respond quickly and take down the image or content. No piece of content is worth getting into a lawsuit over, so the best thing to do is to deal with it quickly, quietly, and professionally.

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Source: brandwatch.com

3. Consider Insurance

This might sound drastic, but if you plan on using a lot of UGC over a range of different campaigns, it might be worth investing in some insurance. There are plenty of new insurance companies and plans that have been made specifically for brands and service providers that heavily rely on UGC.

Having insurance in place will give you peace of mind and significantly reduce liability costs if you do run into a sticky situation somewhere down the line.

4. Provide Training

In order to avoid getting on the wrong side of law with UGC, it’s important that you keep your team up-to-date and give them adequate training when it comes to the rights and wrongs of UGC. 

A lot of the time, brands get into trouble simply because they don’t know they’re  doing a bad thing.

A considerable amount of trouble can be avoided if your team is well educated on the world of UGC and the laws that surround it.

UGC is an incredibly powerful tool for marketers. We only have to look at the influence it has on the buying process to see just how much of an impact it has on consumers, so it would be crazy to not utilize it.

The online world can be tricky to navigate, especially as the laws are slower to evolve than the thousands of new technologies that emerge every month, but sticking to a set of suggested practices and making sure you play it safe by asking for permission – whether it’s explicit or implicit – will make sure you don’t end up in the same situation as Duane Reade did back in 2014.

No one wants that, right?

About the author

This guest post was written by Jose Gallegos, an award-winning Content Marketing and SEO Strategist at TINT.

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