When I took office, only high-energy physicists had ever heard of … the Worldwide Web … Now even my cat has its own page
– Bill Clinton, announcement of Next Generation Internet initiative, 1996
Historically, distribution over the internet contained a number of similarities to traditional publishing and broadcasting models – internet content providers developed or sourced content, packaged it and served it to eager (but passive) consumers. In this 'pipes' model, the 'publishers' had control over what was provided, how and when it was viewed, what (if anything) could be done with it and dictated the way in which it was arranged, accessed, used and re-used. Whilst our legal system scrambled to catch up, ultimately it did catch up (or lagged closely behind) and experienced relatively little difficulty in adapting traditional structures and legal concepts to the 'pipes' model.
With the advent of social networking sites and user generated content there has been a dramatic – some might say seismic – shift in this paradigm. In Europe, for example, 127.3 million visitors used social networks in August 2007, with 24.9 million visitors in the UK (or 78% of the UK's web users).1 The number of user generated video uploads per day in 2007 was approximately 500,000. This is expected to grow to more than four million a day in three years.
The explosion of user generated content (UGC) has placed the user in control of the content in a range of ways. In this brave new world of the 'third order of order' (to adopt a description coined by David Weinberger), the user now controls content creation, context, organisation, use and re-use. No matter who owns the content, the control of the organisation and use of that content is in the hands of the users.
Media and entertainment companies see UGC as one of the top three challenges today. Futurists and IT researchers are debating how to deal with classification of content, self-classifying taxonomies and the level of 'pragmatic looseness' or 'smushiness' that makes the system work (or not). In the same way, the legal challenge is whether our legal system will recognise this shift in focus and in control, or continue to impose obligations based on an outdated or increasingly irrelevant 'pipes' or traditional broadcasting or publishing models.
Copyright and user generated content
We are all aware of the recent litigation or threats of litigation over actual or alleged copyright infringements – and the provisions made for legal costs to deal with those issues on social networking or UGC sites like MySpace and YouTube. Following on from the peer-to-peer litigation in both the US and here in Australia, many of the principles have been settled. Liability for indirect infringement is based on authorisation of the conduct and the ability of the host (or the publisher) to control the activity at the site. And yet, 'publisher' control is the antithesis of UGC. The publisher or host does not 'control' the content, the users do. What is yet to be seen is the extent to which our legal system will seek to impose obligations of control, or the extent to which hosting content will attract liability. Certainly if the consideration and analysis remains based on a 'pipes' model, hosts will be considered to have the necessary control.
Our system has developed a number of specific mechanisms to help internet service providers (ISPs) and internet content costs (ICHs) deal with these important issues. Examples include specific provisions protecting those who merely provide the infrastructure or the means of communications and the 'safe harbour' defence offered through a notice and take down procedure.
What is yet to be tested is the extent to which a UGC based site that has no interest in the content and is merely providing the infrastructure will be held liable and what activities by the host will push it over the line so that it no longer has the benefit of the safe harbour provisions. For example, will a host move outside the protection of the defence by also serving ads and generating revenue? What effect will a subscription model have? If you provide tools to help users create, find, mix or share content are you doing more than merely providing the infrastructure? I suspect for each of these examples the safe harbour provisions will be found not to apply.
We have begun to see privacy playing an increased role in the use and regulation of UGC and social networking sites. We have seen issues around false social networking profiles, which is more about authenticity and adequate registration processes, and Facebook's recent press about its targeted marketing, but there are bigger issues.
In mid August 2007 in the UK the Press Complaints Commission issued its first ever ruling on UGC published online. A school student who had received poor results videoed her unruly classroom on her mobile phone to show her parents as an explanation of her poor results. The other classmates, their parents and the school authorities had not given any permission for filming or for publication of the film to take place. The girl's story, and her video footage, appeared in The Sun, The Daily Mirror and The Hamilton Advertiser, and was the subject of complaints by the president of the school's parent teacher association.
The PCC said that demonstrating a discipline problem in a school was in the public interest and to a large degree the video provided the evidence to support the girl's position about her teaching conditions. It found that, "It was therefore entirely legitimate for the paper to bring conditions in the classroom to public attention, and to use – at least in part – the information contained in the video." However, the PCC upheld the complaint made against the Hamilton Advertiser, which had posted the video online without obscuring the children's identities. The PCC found that the newspaper had a responsibility to ensure that the material it published did not infringe the rights of the pupils appearing in the footage, some of whom were clearly identifiable. As the pupils had not known they were going to feature in the newspaper and on its website there had been no consent for publication.
It must be remembered that privacy laws in Australia are different to those in the UK. However, this is a clear signal that privacy issues for UGC cannot be ignored. If not already doing so, hosts of UGC need to start taking effective steps to ensure that there is proper privacy compliance.
One particular concern in relation to privacy issues is the ambiguity around who is actually 'publishing' UGC and whether the National Privacy Principles apply. For example, under Australia's current laws most individuals will not be required to follow the National Privacy Principles set out in the Privacy Act 1988 (Cth). In the situation of an individual writing about another person and then publishing that information online through a social networking or UGC website it remains to be seen whether the organisation hosting the UGC must apply its privacy policies to that published information.
It is necessary to consider whether you can assume that the personal information posted (particularly the information of someone other than the content creator) is 'published' (made available) to all the world? Or is UGC not in fact 'published' at the time it is made available online? Is it the modern day digital equivalent of a diary or personal correspondence?
The answers to those questions will depend very much on the content itself, and the nature, content and rules governing the site itself. An 'invitation only' site with personal content intended only for a limited audience raises different issues than more ubiquitous or universal social networking or UGC sites like YouTube.
The law is scrambling to catch up with a whole host of other issues, including defamation, misleading and deceptive conduct, trade marks and content classification. At this stage, we are applying traditional principles for the 'pipes' models, trying to make them fit to the UGC world. Whether that works, or raises even more issues, time will tell.
Matthew Hall is a partner Swaab Attorneys.
1 Internet Statistics Compendium 2008, Copyright 2008, available from E-consultancy.com.
2 Transcoding Internet and Mobile Video: Solutions for the Long Tail, IDC, September 2007.
3 User-Generated Content Is Top Threat to Media and Entertainment Industry, Accenture Survey Finds, 16 April 2007, available at newsroom.accenture.com/article_display.cfm?article_id=4534