User-generated content

Non-copyright-related takedowns of user-generated content

Anonymous

May 31st, 2013

Anyone running an online service that hosts user-generated content must be prepared to deal with users uploading inappropriate content. One class of such content gets lots of attention on tech blogs and the like, namely copyright-infringing content. But there are other classes. There's content expressing hatred of certain groups, as in the current controversy over misogynistic content on Facebook (see, for example, this GigaOM post). There's also content that's libelous or bullying toward specific individuals.

I'm trying to learn what my legal obligations are, as a founder of an online service, with respect to non-copyright-related takedowns of user-generated content. Of course, they differ from one country to another, and that in itself is problematic; for example, given my company is in the USA but has users in France, do I have obligations with respect to French laws against publishing anti-Semitic material?

I'd appreciate suggestions of blog posts, web sites, books, or any other resources discussing these issues. I realize it may be necessary to consult a lawyer regarding various details, but first I'd like to gain a general understanding of the subject.

I'm just starting to investigate this, and I expect it will interest other founders, so if I come across helpful resources in addition to any suggested in response to this post, I'll eventually list them in a response of my own.

Thanks.

Erik Larson

May 31st, 2013

I'm not a lawyer, but I ran a large (millions of users) online UGC property for a big company, and here are some thoughts:

- If your servers and employees are in the US then there is almost nothing that foreign governments can do, and if you are a small company with a small user base with no money changing hands in their country then there is very little they will try to do. The trickiest problems internationally in my experience are privacy laws in Europe (esp. Germany) and anti-crime laws setting data recording/retention standards for some types of internet services (esp. the UK). Easiest answer at first is to keep your stuff in the US until it is worth the trouble.

- This blog post is an excellent, pragmatic summary of other issues: http://www.avvo.com/legal-guides/ugc/social-media-law-101-dealing-with-legal-and-risk-issues-arising-from-user-generated-content-1

In my experience the two toughest areas to deal with relate to 1) children and 2) subpoenas and other court actions.

- Child pornography is the trickiest, because businesses are _REQUIRED_ to report it, unlike other potential criminal activity. Not only that, it is dangerous to handle because it can be incriminating just to view it unless you have clear procedures in place to deal with it. Also, child pornographers have been known to seek out obscure sites to share their stuff, especially ones with controls/permissions like private groups and stuff. If private photo/video sharing is a significant part of your UGC, then _definitely_ talk with a lawyer so you know what to do.

- COPA (i.e. no kids under 13) is only a little tricky, assuming your site is for adults. But something to be aware of.

- The legalities of subpoenas and court actions are fairly well laid out in that blog posting. However, if you get a subpoena from the FBI or other agency asking for various records over a period of time, then not only will you you'll clock a little time with your lawyer but also folks on your technical team will end up spending a chunk of time locking accounts down and pulling the data together. The first time, this feels exciting and confusing, especially if there is strong time sensitivity to the subpoena, but you get it done. If it happens a few times, it feels more like a distraction that warrants some feature work to make it easier next time.

Hope that helps.

Michael Hanson Entrepreneur in Residence at Greylock Partners

May 31st, 2013

The best resource I know of is http://www.chillingeffects.org/ 

It's a joint project of the EFF and a number of university legal departments, tracking the state of C&D on the web.  It has a number of clearinghouse topic pages that dig into the issues of copyright/DMCA, fanfic, anonymity, protest & parody, etc.   Much of it is written by Actual Lawyers.

The best pages are buried a bit - go to http://www.chillingeffects.org/topics.cgi for a good overview.

Jonathan Vanasco

May 31st, 2013

Not a lawyer, but my understanding has been this:

- everything that Erik Larsen said.  ( Copa, Child Pornography , Court Actions )

- you're generally safe if you limit "business activity" to the USA.  keep your employees and servers in the US ; but also don't do ad sales or use vendors from the EU.

- there are crazy people on the internet.  they'll scream libel / defamation of character if someone posts content or makes a comment about them.  some will want to retract something they posted in regret.  they'll threaten to sue you.  some will even pay a lawyer to write a letter threatening a lawsuit.    you *generally* can dismiss those as crazy people who don't follow though and just ignore them.  replying to them, even once, can unleash a torrent of emails and dragging your name into random claims.  never answer a "crazy person message" by a real person; just use a "support@example.com" for the email and sign it "Your friendly Example.com support staff".    you *sometimes* may need in-house consul to write their lawyers a letter to the effect of "Did you actually go to law school?".   Very very very rarely are these claims and requests ever substantiated in law.    

The crazy person stuff happened like clockwork when i was at TheDailyBeast and Newsweek.  

Jenn Louie

May 31st, 2013

I am not a lawyer, but I have years of experience advising on product, advertiser and user policies and enforcement processes and tools at Google and YT.

I agree with Erik about the top 3 categories outside of copyright to make sure you have strong policies and enforcement processes around. I also second his advice on international privacy and data retention law. If you are directly or indirectly monetizing from what is being posted on your platform or through your service, you will need to think about a whole host of other policies related to content and are usually obligated to respect the laws of other countries even though you are based in the US.

You may want to consult a lawyer in some cases, but in many cases you can avoid escalations and mitigate risk by having a good set of policies that you can enforce and communicate well.

Happy to answer any specific questions you might have. Feel free to email me.

Danny

May 31st, 2013

I absolutely would be interested in hearing about what resources you find. Thank you for having the foresight and consideration to include others in this common issue. -Danny

Will Glasson Assistant County Attorney, Multnomah County

May 31st, 2013

Ralph -- 

I'm a lawyer and have helped a number of clients with this issue. The answer isn't so "legal," however: curate your content. Free expression is a wonderful thing, but your site is a private forum and you're the champion of your own brand, which will be reflected by the content on your site. Make sure you have a well drafted Terms of Use and Privacy Policy posted on all your pages. Good policies put visitors and users are on notice that their posted expressions must be acceptable and, if unacceptable to you, may be removed and their access denied. 

Will. 

Anonymous

June 1st, 2013

Thanks everyone for your replies. You've given me and anyone else reading this thread a very good start on the relevant issues.

If I turn up any other helpful resources as I dig into this subject over the next week or two, I'll post them here.

Thanks again.

Anonymous

June 11th, 2013

In addition to the resources suggested in the replies and further resources to which they link, I've come across a couple of other helpful resources. One is the blog of Eric Goldman, formerly general counsel of Epinions and currently professor of law at Santa Clara University:

Technology & Marketing Law Blog

Goldman's posts cover a wide range of topics including non-copyright-related problems with user-generated content. The other is a 2011 article by Goldman on the legalities of shutting out problematic users:


Despite its being published in the UC Irvine Law Review and my not being a lawyer, I found the article quite readable and instructive.