User generated content – the legal highlights
User-generated content (UGC) is increasingly being used by brands for marketing purposes, but what are the legal implications?
What is user-generated content?
UGC is content that has been created by an individual and made publicly available. UGC can include posts or images, videos, comments, reviews, blogs and vlogs submitted or uploaded to a website or social media platform.
How do brands use UGC?
UGC can be an important tool in a brand’s marketing toolkit. If an individual sees or reads about someone else having a positive experience with the brand’s products or services, they may be encouraged to also buy them. There are however some important legal considerations to be aware of.
Marketing rules and regulations
The UK Code of Non-broadcast Advertising and Direct & Promotional Marketing (CAP Code) applies to non-broadcast advertisements, sales promotions and direct marketing communications, and is enforced by the Advertising Standards Authority (ASA). UGC in of itself is not regulated by the CAP Code, but where the brand “adopts and incorporates” UGC into its own marketing communications, the CAP Code will apply
“Adopting and incorporating” includes re-posting the content, commenting on a user’s post, and even liking a user’s post. However, where users must actively detect which posts have been liked by the brand, and where the act of the brand liking the post does not trigger the post to be pushed out to the brand’s followers or to the original poster’s followers, the liked post is unlikely to be covered by the CAP Code.
Where marketing content does “adopt and incorporate” UGC, the content must comply with the CAP Code and be fair and not materially misleading, harmful or offensive. There are additional rules for marketing communications aimed at children, relating to weight control and slimming, containing health and nutrition claims, and relating to alcoholic beverages.
ASA has recently upheld a claim against the Skinny Tan brand relating to two Instagram stories which were re-posted by Skinny Tan on its own Instagram account. Each story was by an influencer and included an image of the influencer with a caption as follows:
“So impressed with how that went on, honestly like no other fake tan I’ve ever put on, and the smell is just something else. Can’t wait to see what it’s like tomorrow morning [heart-eyes emoji]”
“Haven’t done my make up yet, but absolutely obsessed with the @skinnytanhq coconut serum I used last night. Smells amazing. Can’t wait to get some proper pictures to show you guys!”
The complaint related to the use of an Instagram filter which the complainant argued exaggerated the results of the tanning product. ASA upheld the complaint, noting that both stories were re-posted by Skinny Tan and were incorporated into Skinny Tan’s own marketing and therefore were covered by the CAP Code. ASA concluded that the implication from the stories (due to the captions and images used) was that the tanning product would produce the same result as shown on the user in the stories, and the use of the filter (which produced a significantly darker skin tone) gave a misleading impression about the performance of the tanning product. Accordingly, the advertisements breached the CAP Code. Skinny Tan was warned not to apply beauty filters to promotional content if those filters were likely to exaggerate the claimed effects of its products.
The use of testimonials in advertisements will also be covered by the CAP Code. Brands must ensure that testimonials used in advertisements are genuine (and have not been altered or exaggerated or taken out of context) and hold contact details for the authors of such testimonials.
New EU legislation introduced two new blacklisted practices into existing EU legislation as of May 2022:
- stating that reviews have been submitted by customers who have actually used or purchased the product without taking reasonable and proportionate steps to verify that the reviews originate from such customers.
- submitting, or engaging a third party to submit, false customer reviews or endorsements, or misrepresenting customer reviews or endorsements in order to promote products.
To verify that a customer has actually used or purchased the product it is reviewing, a brand could use technical means to verify that the reviewer is actually a customer (for example, by checking IP address and email verification) and require customers to submit an order number in order to submit a review.
Brands that supply and advertise products to customers in the EU could be subject to regulatory action in the relevant EU countries if they breach national law implementing this EU legislation.
This new EU legislation does not apply in the UK. However, the UK Government has announced its own plans to safeguard consumers by clamping down on fake reviews. The changes to legislation are subject to parliamentary approval, but propose to make it unlawful to:
- commission someone to write or submit a fake review
- host consumer reviews without taking reasonable steps to confirm they are genuine
- offer or advertise to submit, commission or facilitate fake reviews.
Although at this stage these are only proposals, it is best practice for brands to comply with them.
Intellectual property considerations
Before re-posting UGC, brands should consider whether there are any intellectual property rights (IPR) protecting the content concerned and if they have the right to use and share that content. The creator of the UGC (i.e. the individual user) may own IPR in the content, but there may also be third party IPR in the content.
The user’s IPR
Copyright in the UK arises automatically upon the creation of original works (for example a photo, video or song) and is generally owned by whoever creates the works. Copyright gives the owner a right to prevent the work from being copied wholly or to a substantial extent without the owner’s consent. Just because content is posted on a public account for viewing and interacting with (e.g. liked) does not mean that it is now free from copyright protection and can be freely re-posted and shared.
Strictly, if an individual has posted content on social media and a brand wishes to re-post that content on the brand’s own social media page and share that content with its followers, the brand must obtain the individual’s permission in advance. This could be done by contacting the individual user (e.g. through direct messages on the social media platform) and asking for their consent to the brand re-posting and sharing the content. This also has the advantage of providing a paper trail of evidence should a complaint ever be received in future from the user that they did not provide consent.
If contacting the user is not realistic, the brand could also try to obtain implied consent to use content posted by users, for example, by asking users to include a hashtag in their posts if they would like posts featuring the brand to be re-posted on the brand’s page.
Brands can also implement a UGC policy which includes a licence from the user to the brand of any UGC uploaded to social media platforms which contains reference to or features the brand or its products.
However, this policy may not be viewed by users and users may not be aware that by uploading such content to their social media handles they are granting a licence to the brand to re-post and share that content. For certainty, it is always best to get express permission from users to use their content if possible. Use of UGC content by a brand is done to help build its reputation, but this could be undermined if users bring claims for use of content without permission.
Third party IPR
An individual’s post on a social media platform that a brand wishes to re-post could also contain third party IPR, such as background music, or videos or photos not created by the user. Even if the brand has consent from the user to re-post the original post, the user is unlikely to be able to give consent on behalf of the third party to use the third party IPR. The user may not even have the right to use and share the third party IPR in their own posting. The incorporation of third party IPR in re-posts therefore exposes the brand to a potential IPR infringement claim. Where third party IPR is identifiable in a post, such as a song playing in the background, a brand should re-post and share the UGC without the third party IPR.
Data protection
UGC which brands re-post and share may contain personal information relating to the user who created the original content or a third party (e.g. the user’s or third party’s name and image). In order to process that information (i.e. re-post and share it), the brand must have a lawful basis to do so under the UK GDPR.
Consent is a lawful basis to use personal data, but consent can be withdrawn at any time. An alternative lawful basis is ‘legitimate interests’, providing the brand can demonstrate that the use of the personal information is proportionate, has a minimal privacy impact, and no individuals are likely to be surprised or might object.
Brands need to take particular care before using UGC content containing personal information relating to children and carefully consider whether ‘legitimate interests’ applies. Brands will need to be able to demonstrate that they have sufficiently protected the privacy rights of children and that their interests have been prioritised over the brand’s interests where necessary.
As well as having a lawful basis to use data, brands will need to ensure that use of personal data in UGC is explained in their privacy notice.
Recommendations
When thinking about using UGC, brands should consider the following:
- review all UGC before re-posting content on brand platforms to ensure it is not misleading.
- take reasonable steps to confirm consumer reviews are genuine before continuing to host them.
- obtain express consent in advance from users in relation to each re-post of UGC on the brand’s social media handle. This is best practice.
- implement a UGC policy which includes a statement that the brand has a licence to re-post and share any content made publicly available on social media platforms which contains reference to and/or features the brand and/or the brand’s products.
- review and update the brand’s privacy notice to include UGC in the types of personal data that may be processed by the brand, including the purposes of the processing and the lawful basis for the processing.
If you’d like to discuss any of these issues or have questions about the article, please contact Lauren Beech or Grace Astbury in the commercial services team.
Lauren Beech
Solicitor, Commercial Services
T: +44 (0) 161 393 9031 M: +44 (0) 7583 037303
Lauren works as part of our commercial services team with particular expertise in the protection, exploitation and enforcement of intellectual property and advising on data protection and GDPR compliance.
Grace Astbury
Solicitor, Commercial Services
T: +44 (0) 161 393 9062 M: +44 (0) 7949 033514
Grace is a solicitor in the commercial services team, advising and assisting a range of clients on all aspects of general commercial, non-contentious intellectual property and data protection work. She trained with a North West based law firm, handling a varied caseload of commercial, intellectual property and corporate matters.
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