Brand companies have come to view user-generated content as often one of the most effective and authentic ways to advertise their products or services. This is known as “user-generated content marketing.” For example, with the ubiquitous selfie, brand companies have discovered a rich supply of user-generated content. Consider a consumer who takes a selfie wearing a favorite pair of jeans, posts the photo on Instagram, and then tags the photo with #brandname. The jean company sees and likes the photo, re-posting it on the company website. Legal issues? If the consumer or user was hoping to get attention from the brand for the photo and opinions shared online, not at all. This is how many digital influencers get their start. But if the user was not seeking such attention? Then, problems can arise.
Take, for example, issues involving the privacy of a minor. What happens when a parent snaps, posts and tags a photo of their child with #brandname and the brand re-posts a photo that depicts the child? If the child is under the age of 13 and the brand has not obtained parental consent to re-post the photo—even if the parent tagged the original photo with the brand company’s hashtag—the brand may run afoul of the Children’s Online Privacy Protection Act (COPPA). Enacted in 2000, COPPA requires the prior written consent of a child’s parent or legal guardian before uploading, posting, displaying or transmitting user-generated content that contains an image of a child under 13. Re-posting photos without user consent may also run into issues with the right of publicity and copyright ownership. Although many social media companies’ terms of service state that users surrender any ownership of their content to the social media company once posted on the platform, brand companies would be well-advised to obtain permission from the user prior to using any user-generated content (if anything, simply to avoid an unhappy customer).
Permission can be obtained in several ways.
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A brand can post a general notice on the company’s website, blog or social media account(s) that states by using #brandname, the user agrees to allow the brand to use the photo and agrees to the brand’s online terms and conditions.
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A brand can launch a campaign, like a contest or sweepstakes, which encourages users to tag their photos with a particular and unique hashtag associated with the campaign. The campaign would inform users that, by using the particular hashtag, the user could be afforded the opportunity of being featured on the brand website or be entered into a contest or sweepstake in exchange for allowing the brand to use the photo.
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The last and perhaps most direct approach would be to secure the user’s written permission to use the photo. A brand company can obtain such permission, for example, by posting a comment to the photo such as “We love your pic!” and asking for permission to feature the photo somewhere else. The user would simply have to respond to the comment and give consent.
Since there is always the chance that a user may have tagged a photo with a brand or campaign hashtag coincidentally, without being aware of the brand’s notice to post on its website or the particular campaign, this last option—the obtaining of explicit permission—may be the safest approach to avoid any unpleasant surprises on the part of the company or consumer.
Whichever route is chosen, brand companies are best off recognizing that the potential goldmine of user-generated content can all too easily become a landmine of liability if best practices are not established and adhered to when it comes to giving notice and obtaining consent. As with so many things, permission is key.
