Do you run your business entirely through a website or a social media page like Instagram or Facebook? Alternatively, perhaps your online presence complements your business. Whatever the case, if you allow user generated content on your online pages, you should have legal precautions in place to protect your business. In this article, we explain the what the issues are and what precautions you can take.

User Generated Content

‘User generated content’ broadly refers to any information uploaded onto your website by users, which then becomes publicly available. It can take many forms and includes:

  • information and images that a user adds when they create an account on your website;
  • an online review or comment;
  • a guest blog post; or
  • a post on your business’ Facebook page.

Copyright Issues

Whenever you allow users to post content on your website, you need to consider what mechanisms you will have in place to deal with copyright issues.

It is a good idea for you to have terms of use that set out how people can and cannot use the content displayed on your website. In particular, include clauses which:

  • assert ownership over all your content; 
  • acknowledge the copyright of others in any material submitted;
  • license you to use user generated content for a wide range of purposes; and
  • prohibit users to copy or reuse any displayed content without permission from the owner of that content.

There is always the risk with user generated content that users share content which they do not own, consequently infringing the copyright of another person. In these circumstances, you can protect yourself by adding clauses to your website terms which explain that:

  • users cannot upload content which infringes someone else’s copyright;
  • you take no responsibility if they do so; and
  • you may remove any content you believe may infringe copyright.

As a more practical step, you should follow this up by reviewing and removing potentially infringing content. For example, if a user posts a link to an illegal download of a song in the comments section of your website, you should remove this post to protect yourself from copyright liability.

Privacy Obligations

You will need to have a privacy policy on your website so users can see how their personal information is collected, stored and used.

For example, a user may need to create an account to post a comment. Your privacy policy should clarify what personal details they provide can be viewed by the public and what details are for your business’ purposes only.

You will also need to comply with the Australian Privacy Principles set out in the Privacy Act 1988 (Cth) if you have a turnover of $3 million or more a year, subject to a few exceptions.

You should take steps to protect yourself from liability arising from users who post personal information about others. Make it clear that users must only post their own personal information and may only post about a third party’s personal information with that person’s express permission.

Again, reserve the right to remove any content you believe infringes on another’s privacy in your website terms of use. Follow up by actively reviewing posted content to check if it is appropriate for publishing.

Defamation Protections

A publisher of defamatory content can be held liable for damages to the party that has been defamed. By hosting and publishing user generated content online, you can be considered the publisher of that content.

Accordingly, you should make sure that you have a process in place to prevent third parties from publishing defamatory material. Take regular steps to remove any defamatory content from your site that comes to your attention.

Key Takeaways

When allowing users to submit content on your website, have comprehensive website terms of use in place. These terms should allow you to:

  • distance yourself from liability where possible;
  • clarify what kind of content users can and cannot post; and
  • reserve your right to remove content as required.

It is best to also have a privacy policy to protect any personal information collected.

If you want advice on the mechanisms you can set up to protect your website, contact LegalVision’s online lawyers on 1300 755 544 or fill out the form on this page.

Jacqueline Gibson
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