The Laws on Creating User-Generated Content Online: Here’s What They Mean For You

16 Dec 2014 at 5:00pm

Written by
Josh King, Avvo’s Vice President of Business Development and General Counsel

Back in 2006, the Pew Research Center’s Internet and American Life Project surveyed the Internet habits of Americans. In what was then the very early days of social media, Pew’s researchers concluded that roughly 48 million, or over 33%, had contributed user-generated content (UGC) online. There hasn’t been a survey subsequently because the question has become moot.

Thanks to social media and online review sites, UGC has exploded. Nearly every Internet user in America now creates some form of UGC. From posting snarky commentary on Twitter to cat photos on Facebook to plastic surgeon reviews on RealSelf, Americans are sharing their thoughts, opinions, and creative works in an unprecedented fashion.

As the General Counsel for Avvo, a website that provides a forum for consumers to leave reviews of lawyers, I’m often asked about the laws related to UGC. Back in October, I shared considerations for those who want to leave negative reviews online. Today, I’d like to expand the scope and look at three of the primary legal areas that apply to UGC.

Someone else posts your UGC: The Digital Millennium Copyright Act (DCMA)
Copyright is a funny thing. Intended to ensure that adequate incentives exist for those who create to keep creating, copyright attaches automatically to virtually any written, visual, or musical work. Those little “circle c” (©) symbols indicate that someone has registered the copyright with the United States Patent and Trademark Office. While registration provides certain benefits, it’s not a requirement in order for a work to have copyright protection. Just wrote a blog post or shot a video of your puppy rolling over? Copyright.

Cat Using InternetCopyright gives the creators of works, like the blog post or video, the right to prevent others from copying their work. There are a number of limitations on this right, but suffice it to say that in most cases, the creator will have rights if the entire work is used by someone else without consent.

So, let’s say you’ve taken some photos and someone posts them onto a social media website without your permission. You can seek to have them removed by submitting a DMCA takedown notice with the website in question. Different sites may have slightly different requirements for the format of this notice, but the DMCA essentially works like this: If you let a site know that you have rights to a specific piece of UGC, the site must remove that content within 14 days to avoid taking on liability for copyright infringement. The person who posted the content may be liable regardless, but if your primary goal is simply to end the infringement, a DMCA takedown notice is typically the quickest and most effective route.

Don’t bother suing an online forum: Communications Decency Act, Section 230
As a general rule, online forums can’t be held responsible for claims that UGC in their forums is defamatory. That’s thanks to what I like the call “the law that makes the Internet go” (47 U.S.C. § 230(c)(1), or as it’s known casually, CDA 230).

Some grumble that CDA 230 is unfair and that it makes it too easy for gripe, mug shot, and “revenge porn” sites to ruin people’s reputations. But the primary purpose of the law is to encourage forum providers to take responsible steps to filter UGC without fearing that doing so will create liability. While CDA 230 does protect some less-savory sites, it’s also what makes the robust online forums we enjoy today possible, from the sharing of medical information on RealSelf to posting attorney reviews on Avvo to sharing personal anecdotes on Facebook and Twitter.

Protecting your right to free speech: Anti-SLAPP laws
Anti-SLAPP laws are fast becoming a critical tool for defending online speech. These laws are designed to combat SLAPPs, or strategic lawsuits against public participation. A SLAPP suit is typically a frivolous legal complaint, often for defamation, intended to intimidate the defendant into shutting up about a matter of public concern, like a patient’s review of a doctor. It counts not on winning the suit, but on making the defendant conclude that the uncertainty and costs of defense would make it not worth continuing to exercise their first amendment rights.

In states with robust anti-SLAPP protection such as California, Texas, and Washington, the defendant on the receiving end of a SLAPP suit can file an immediate motion to have the case thrown out. If successful, not only is the case dismissed, but the defendant is awarded fees. Such laws make would-be SLAPP-filers think twice before doing so; they also make it easier for those sued to obtain defense counsel. A growing number of states are adopting enhanced anti-SLAPP laws, and there is even a movement to pass such a law at the national level.

Ultimately, the DMCA, CDA 230, and anti-SLAPP laws act in concert to make it easier and safer for users to post content and have robust conversations online. Sure, those discussions are sometimes messy or controversial. But I hope you’d agree that the best answer is more free speech and more user-generated-content, not squelching discussion and sharing online.

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