To Monitor UGC or Not Monitor UGC, that is the question....

The most relevant laws for companies with a US online presence that collect and publish user generated content are the Communications Decency Act (CDA) and the Digital Millennium Copyright Act (DMCA).

Before the DMCA, there was a strong argument for holding companies legally responsible for the vicarious copyright infringement of its users because the company technically facilitated the infringement and posted the content for the public to access.

Recognizing that companies could not realistically police their sites for copyrighted content, the DMCA shifted the burden of identifying infringement to the rights' holders. However, companies only escape liability and gain protection by the safe harbor provision if they comply with a strict set of guidelines or have not actual knowledge of the infringement. (Companies must post instructions for rights holders to submit DMCA takedown notifications and timely follow through with all requests.)

The CDA, on the other hand, allows and encourages companies to proactively moderate their sites without fear that they will open themselves up to unlimited liability in the event they miss something or fail to take action.

In addition, under the US safe harbor for the hosting of child pornography, if the company becomes aware of the images or video that violate the child pornography laws in the US, it is not liable as long as it reports the images/video to the cybertipline and follows their instructions for managing that content.

None of these laws require moderation or that the network screen for copyright violations, child pornography or abuses. But in the case of the CDA, actual knowledge of the problem does not add liability. They may take action, take partial action or do nothing and see avail themselves of the CDA immunity provisions.

Under both the safe harbors for copyright infringement and the hosting of child pornography, actual knowledge requires remediative action. Failure to do so can lead to the network being charged for its failure to respond in accordance with the law.

One common solution is to only search for infringement of your own brand and risk management issues (such as threats and hate speech). If you avoid searching for the trademarks of third parties you will not have actual knowledge of their use and the responsibility to take action that comes along with that knowledge. It is also worth discussing the option of searching for intellectual property violations of your partners’ and advertisers’ names to demonstrate that you care about their brands as well as your own.

Sticking your network's head in the sand may look like the best way to do when it comes to mediating content and conduct on your sites/networks. But, if you have a brand name to protect or advertisers who want theirs protected, you have no choice. Just be careful how your systems aredesigned and your moderators trained. Looking for the needle you want in the haystack of social media and UGC isn't hard with the right tools. Use them.