User Generated Content (UGC) in social media/online marketing: What you need to know

When might UGC be used?

There are a number of situations when you may decide to use content created by your customers or followers as part of online or social media marketing, including, to name just a few:

- using reviews or testimonials on your website or on a social media post;

- making use of a photo that a customer has taken on your social media page or on your website; and

- running a competition where you encourage users to submit videos, tweets or images and reposting the best or displaying them on your website.

The key consideration is whether you are using UGC in such a way that it is deemed to be part of your own marketing communication. CAP, the body which creates the UK advertising rules, advises that you are likely to be held responsible for any UGC which:

- is incorporated into your own marketing communications (i.e. copied in a post or tweet or used in an ad);

- you actively promote, for example by retweeting or “liking” the UGC; or

- you exercise control over, for example where you encourage users to post something specific.

In any of these circumstances, you will be responsible for the content of the UGC. Therefore, it is essential to ensure that the UGC is legally compliant. Not only does this mean that the content used must adhere to the CAP code, but it also means that you run the risk of infringing the creator's intellectual property rights if you do not have the relevant permissions to use the UGC.

Intellectual property considerations

There are two main ways in which you can obtain permission to use UGC – obtaining a licence to use the it from the creator, or getting the creator to assign you the rights in it:

- Licence - this will give you the right to use the UGC in accordance with the terms specified in the licence, such as for set period of time, in a certain territory, in a specific medium and/or for a particular purpose.

- Assignment – if the creator assigns intellectual property rights to you, you will enjoy full ownership in the UGC, allowing you to use it as you wish, without limitation.

The licence or assignment should be clearly set out in writing.

You should also be aware that the creator of content has certain rights that cannot be licensed or assigned. These are called moral rights and include the right for the creator to be identified as an author of a work and the right not to have their work subjected to derogatory treatment. In order to ensure that the creator cannot enforce these rights against you after you have used their UGC, you should obtain a waiver of moral rights. Ideally this would be in writing, signed by the creator of the UGC however, at the very minimum, there should be a provision in any relevant terms between you and the creator (e.g. in competition T&Cs) which says that the creator agrees to waive their moral rights in the UGC.

It is also worth checking that the UGC does not contain anything which could be the intellectual property of a third party. For instance, a photo submitted by an entrant into the competition might show a work of art created by a third party. Depending on the prominence of this within the context of the photo, the UGC might infringe the IP rights of the artist. Similarly, if a video posted by a follower contains a song as a backing track, unless the creator had the permission from the artist to use the song in such a way, they are in danger of having infringed the artist's IP rights. You need to be alert to third party content which is incorporated into UGC; as soon as you use the UGC on your own website or social media pages, even with the permission of the person who you believe made it, you could be infringing a third party's intellectual property rights if you don't have permission from the owner of any content which has been incorporated into the UGC (such as a work of art or a song). That third party is probably more likely to enforce its rights against a commercial organisation making unauthorised use of its work than an individual user merely incorporating its work into a one-off tweet.

For more information on user generated content, and issues which you could face by using it, please check out the DMA Social Media Guide, which can be accessed at http://www.dma.org.uk/guide/social-media-guide.