Social networking continues to boom in popularity, but those businesses who choose to use this platform as a route to market their brand will always battle with the fear of being left wide open to bad publicity. This is exactly what can happen if user generated content (UGC) is not moderated effectively, but is reputational damage the only consideration for a business, and what are the legal implications for brands found to be taking an irresponsible attitude towards moderation?
Rob Marcus, founder of Chat Moderators, a company specialising in judging contributions to social media, comments, “The case for moderating to prevent brand damage is simple – if you don’t want to be associated with inappropriate, offensive or potentially abusive material then moderation will seem like a relatively small price to pay. However, some brand owners are confused about the legal obligations of moderating a social networking initiative. Over the past few years I’ve seen some cases of negligence caused by brands not effectively managing user-generated content (UGC) – but whether they face prosecution or not is where the uncertainty lies. There is more Law in this regard than just the Defamation Act, although that’s where most of our legal discussions begin.”
Duncan Lamont, a partner at Charles Russell legal practice, comments, “The law of defamation has struggled to keep pace with technology and, in particular, how people choose to use it. Parliament gave protection to websites which allow user generated content from libel but only if an item is deleted reasonably quickly when a complaint is made. But experience showed that frequently websites were too slow to notice what was going on or to respond to it. Very recently, the courts have taken the view that it is not proportionate to allow expensive libel actions over postings only seen by a very small group of people i.e. five or ten not thousands.
“However the Defamation Act is not the only problem for websites - people choose to speculate on the guilt or innocence of celebrities caught up in criminal law (potentially a Contempt of Court risk), republish copyright protected works, use obscene or racist language or other offensive slurs or material, all of which fall outside the protection of the Defamation Act 1996 leaving brands potentially exposed to damaging allegations that they tolerate discrimination, race hatred, or worse. Un-moderated sites are always at risk of being hijacked, and when things go wrong a critical media may well label as irresponsible any brand owner who was simply relying on their terms and conditions being complied with.” Marcus comments, “I believe it is the responsibility of social media owners to ensure that comments are “fair and decent”. From time to time, brand owners tell me that they’ve been advised not to moderate, in order to avail themselves of a so-called ‘section one’ defence under the Defamation Act – that of ‘innocent dissemination.”
The Defamation Act 1996 protects against the publication of libels in certain circumstances, not the multitude of other potentially offensive material that can be put on websites. Lamont continues, “Although with persistence and determination it is possible to identify the poster of offensive material and possible punishment meted out, it is usually the brand that suffers more from its inability to control the content. A particular problem for websites is privacy - a new area of law that did not exist when the Defamation Act of 1996 was enacted. Privacy invasions are going to be the subject of increasing damages awards, whether what is said is true or not. The invasive comment may be enough to justify a claim and this is something that may get through key word searches and require alert moderation.
“The law is likely to remain "publish and be damned" with no legal obligation for brands to moderate, in the same way there is no legal obligation on an editor not to publish material that is subsequently found to be objectionable. Editors and owners of websites have Article 10 Rights - freedom of expression. The law punishes what is published, not what might cause offence but then again might not. But as brands become increasingly aware of the power of their identities, and the damage that can be done by malicious posters, the likelihood is that there will need to be much more moderation, including "light touch" moderation on those prestigious sites people actually want to visit and have an expectation of honesty, truthfulness, accuracy, decency, fairness or any of these.”
Marcus explains, “All of our clients appreciate that their responsibilities extend beyond the Defamation Act. They are not concerned that by moderating they might be giving up a questionable defence to libel actions (that of being an innocent disseminator), as they know that moderation is the only way for them to manage their responsibilities to other laws (such as copyright, sexual offences and contempt) and to the quality of the user experience. It is impossible to deal with trouble-makers and bullies, or even to answer simple questions from an audience, without moderating. Owners of social media sites might be better off viewing moderation not so much as something that opens the door to litigation, but as an opportunity to enhance brand values by raising the quality of the user experience.” Rob Marcus,Director, Chat Moderators
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