February 27, 2014

Occasionally, insurers encourage user-generated content for their websites and social campaigns. For example, a 2012 Nationwide promotion allowed users to upload videos for its “Join the Nation” campaign. Unfortunately, publishing user content can be a legal minefield. This is what insurers should know about the legal risk involved.

“When you’re using user-generated content, there are certain liabilities and concerns you have to be aware of,” said Jeff Neuburger, partner at Proskauer Rose LLP and co-chair of its Technology, Media and Communications Group in New York. Neuburger discussed the topic in a seminar at Social Media 2014: Addressing Corporate Risks, hosted by the Practising Law Institute on February 26.

Many of the concerns regarding potential liability for user-based content are addressed in the Digital Millennium Copyright Act (DMCA) of 1998, which was created to modernize copyright laws in accordance with today’s technology.

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Businesses that feature user-generated content on their websites must meet certain basic legal requirements. They must, first of all, adopt and inform subscribers of policies that require termination of those who repeatedly infringe copyright rules. While copyright infringement is punishable, the DMCA acknowledges that it can be tough for companies to monitor extensive amounts of content.

“If you’re a service provider without actual knowledge of infringing content, you won’t be held liable for certain types of damages,” said Neuburger. He noted the recent lawsuit between YouTube and Viacom, in which Viacom sued after seeing vast amounts of their content on the video-sharing site.

It was determined that YouTube was not wrong in hosting the videos because of the vast amount of content on the website; however, this case did give rise to issues regarding the ability to control what goes on a website. YouTube did not induce the uploading of copyrighted videos, which suggests that in order to violate the law, the company must participate in infringing behavior. Similarly, if an insurer’s subscriber posts copyrighted material on its website, the insurer is not in legal trouble unless it participates.

Businesses that publish user-generated content must also accommodate technical measures that protect copyrighted works and appoint agents to respond to takedown notices. These notices are submitted by copyright holders if they believe there is infringing content on a website. The recipient’s contact information must always be updated or else the publisher does not get legal immunity.

Insurers can also stay out of legal trouble by monitoring employee behavior and refraining from the encouragement of offensive content on their websites.

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ABOUT THE AUTHOR
Kelly is an associate editor for Insurance & Technology. Prior to joining InformationWeek Financial Services, she was a staff writer for InformationWeek and InformationWeek Education. Kelly has also written for trade ...