Don’t feed the trolls

“I want to engage my customers by allowing them to generate their own content and share their views on my site. However I’m worried that I’ll be opening up a can of worms when it comes to liability for this kind of content should something inappropriate go up.

Am I legally responsible if users post or link-to copyrighted, offensive or libellous content? What am I obliged to do if such content should find its way onto my site?”

Natalie Salunke, head of legal, EMEA at cloud-based commerce services provider Venda answers…

Allowing consumers to interact with your site and share their own reviews, comments and opinions is becoming increasingly popular as a form of customer engagement. However, retailers need to be careful that they don’t bite off more than they can chew when implementing these strategies.

We all recognise the value to be gained from improved targeting through peer reviews and the importance of finding new ways to break through marketing clutter. However, the increasing commerciality of user-generated content (UGC) means that retailers should be aware of the legal ramifications surrounding such services.

For retailers, there are a number of issues arising from content contained within their websites. This is because website operators are, in principle, liable as publishers for everything that appears on their sites, even though the content may in fact be determined by its users or third parties.

On the question of linking, the likelihood of being sued for linking to a third-party site without permission is very small but can happen. The main risk in linking to third-party sites is more to do with liability in relation to any content that may feature on a linked-to site. This has been highlighted recently in the courts where a website operator was held liable for content contained on a third-party site due to the similarity and “close association” of the parties’ websites.

When opening the door to customers to post their own content there is a risk that some users may upload content that infringes the intellectual property of third parties. Uploaded content could be defamatory, obscene, illegal or inappropriate. In other words, retailers may be opening themselves up to “trolls”. It is therefore wise to have a good understanding of how to manage UGC and deal with any infringing content to minimise any negative impact to your business.

So what do I need to look out for?

When it comes to copyright infringement, a user could easily post work that constitutes, includes or is based on the copyright works of others. Be this pictures, text or video. Obviously in this case it is difficult for a retailer to be certain of whether the user has the right to share such information or not. Asking a user to warrant the ownership of such information can help build a legal case against the user, but this can be of little practical assistance when being faced with a third-party infringement claim.

Any negative and unproven comments about an individual or entity posted on a website could easily fall within the category of defamation. The presence of such content on a site could have expensive and unwelcome consequences. In recent cases extreme “trolling” by individuals has even led some victims of such abuse to suicide.

For illegal content there is a general legal requirement against inciting others to commit criminal acts and, as such, any promotion of content of this ilk could constitute incitement.

Success could also end up costing you dear, as the more visitors to your site, the more costly an infringement could be. For example, for defamation claims, each “hit” on a defamatory article can be counted as a separate offence.

Are there are defences against charges of liability?

Should a claim be brought against you, moderation of content will help support a legal defence. There are two primary defences that retailers can use:

First, an “information society services” defence whereby you argue that you just host such services or are a “mere conduit” in the provision of such services. In order to benefit from the “hosting” exemption, a retailer would have to demonstrate that it does not have actual knowledge of the unlawful activity or information. If it was made aware of infringing activity or information, it must act expeditiously to remove access to it.

A second defence that a retailer could adopt is the defence of innocent dissemination. In order to be able to rely on this defence you cannot be seen to be the author, editor or publisher of the statement. You must have taken reasonable care in relation to its publication and you must not know, and have no reason to believe, that the text caused or contributed to the publication of a defamatory statement.

In practice this means that as a retailer you need to remain vigilant, particularly in relation to moderating content. You must also promptly respond to any infringement notices received.

What can I do to avoid being sued?

Naturally risk mitigation is better than having to resort to legal defence, with all the attendant costs and adverse publicity of a lawsuit.

The first step would be a prompt for contributors to affirmatively accept prominently displayed terms and conditions on your site. These should prohibit users from posting infringing and illegal content, reserve the right to remove any content placed on the website at your discretion and disclaim any liability for infringing or illegal UGC.

A well thought out and easily visible “notice and take-down” policy will help deal with complaints from third parties with respect to infringing content. It will also allow for rapid removal of any content that is found to be outside of your guidelines.

As a fail safe, implementing a monitoring process to filter out any potential infringing, illegal or inappropriate content could help protect e-retailers. This could be in the form of an automated initial review and publication process, whilst exercising caution in relation to what is published. This is particularly useful when attempting to defend being deemed to be a “commercial publisher” as part of a defamation claim.

Changes to the law are in progress that will affect how e-retailers manage these kinds of legal issues, in particular, unmasking the likes of abusive internet “trolls”. The draft defamation bill seeks to redress the balance between freedom of speech and the interests of victims of online defamatory content. It will provide web retailers with a “legal” ability to defend a potential defamation claim.

Claimants will be able to pursue a claim against the true author of the defamatory publication so that they are held to account and cannot hide behind a pseudonym or anonymous post. This should be viewed as a welcome move by website operators as it introduces some certainly in a bid to protect themselves from liability for UGC.

As of the date of this article, the House of Commons latest consideration of the bill is yet to be reported. However, the government has indicated that it will provide further guidance to website owners in due course.

Natalie Salunke answers a question on the right to be forgotten in the September issue of Direct Commerce. To subscribe and guarantee your copy, head to our Subscription Options page.

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