We often come across various stories and posts where we see a friend of ours or maybe our favorite Instagram or YouTube influencer posting a photo or video about some or the other brand/product and telling how happy they are by the use of a particular product. It might be an Air Jordan or a lipstick from Huda Beauty. This is termed user-generated content for UGC. This type of content is unsponsored and unpaid; therefore, it is authentic, priceless, and credible. These are real users compared to the actors; consequently, it feels like getting a recommendation from someone you know.[i] UGC differs from influencer marketing; in influencer marketing, the influencers are paid to promote the brand, and therefore, the review’s credibility is questionable. Many customers rely on UGC to stay up to date on the products coming into the market. Additionally, such content reduces the burden for marketers who struggle with ideas and have exhausted their pool of ideas. In this digital age, it becomes essential to balance the rights of both the creators as well as the owners of such trademarks and copyrights to ensure that the acts of creators do not cause acts such as defamation, trademark and copyright infringement. This blog will explore such potential infringements and consequences and conclude with suggestions that creators should keep in mind before coming and posting on such platforms.
INTELLECTUAL PROPERTY CONCERNS
Trademark concerns:
UGC is generally content that creators make for their followers and entertainment. Therefore, the purpose is only commentary, reviews, and artistic expression of their skills, which falls within the category of non-commercial purposes. There being no commercial purpose, the work/content falls within the category of Fair use, Section 30 of the Trademark Act.[ii] So, for instance, if an influencer posts a review video of hers using a particular facewash, say, Dot&Key, and says, “ I love this facewash as it is gentle on my face,” there is no commercial purpose, and therefore, it does not attract any form of trademark infringement and will fall under fair use.
Copyright Concerns:
Different platforms have different terms and conditions for creators who want to incorporate music into their content. Music is the original artistic work of singers and, therefore, requires authorization before being used. Social media platforms such as Instagram have agreements with “music rights holders.” Therefore, a creator making UGC having incorporated some music and also adhering to usage guidelines would be protected under the Copyright regime because his work falls under “Fair Dealing.”[iii] On the other hand, a creator posting a video on YouTube will require the permission of the owner holding a copyright in that music before uploading it.
Additionally, this UGC is itself a copyrighted work. The creators who upload videos (reviews), photos, posts, etc, are, by default, the rightful owners of the work they create.[iv]
Defamation Concern:
A false statement of facts, which harms the reputation of an individual, can be termed as defamation. It can be pointed towards a specific individual or an entity. It must be noted that mere opinion on something, for instance, review videos, cannot per se be said to be defamatory. It should be seen from the perspective of a reasonable listener what he will perceive when he comes across such a video. Section 356 of the BNS, 2023[v] lays down the grounds for defamation along with punishment, which includes imprisonment, fine, or both, or with community service. While a statement might not be defamatory, but might be against the guidelines of a social media platform. A false and defamatory statement can lead to huge losses for a business because defamation on social media is viral, potent, and instantaneous. A customer might not be aware of a particular good but will become aware as soon as someone makes a negative statement about it.[vi] Consumers tend to lose trust in a brand, thereby leading to a massive loss of goodwill and reputation.
Liability of platforms hosting UGC and Safe Harbor provisions under the IT Act:
Safe harbor protections are designed to absolve liability for “social media users”, “user-generated content-based sites”, and even “search engines that receive thirds-party content” in their platforms.[vii] For such protections, intermediaries are normally required to comply with several requirements, including the following:
- Serving merely as a passive channel that does not alter or edit any content for users.
- Associating with a “notice and takedown” system that allows the removal of infringing content upon receipt of legal notice or complaint.
- Creating enforceable policies and systems against copyright infringement and other illegal, actionable content.
Section 79 of the IT Act of 2000[viii] extends safe harbor coverage to intermediaries in India who do not originate, choose, or alter the content they are transmitting and who, once their notice or knowledge of illegal content is received, remove it promptly. This was significantly impacted by the Shreya Singhal v. Union of India (2015),[ix] which entails that postal communications and email services are protected from intermediaries’ interference so long as there is no legal order or supervisory notice given to them.
In many other countries, including the US and on relevant local jurisdiction, YouTube undertakes the DMCA[x] which they show as their content policy, as well as a global law provisioning basis. The core of it lies within the Content ID system, which enables copyright owners to track and control their content.
Even if Content ID enforcement surmounts the classic notice-and-takedown models, YouTube is obliged to comply with safe harbor rules by swiftly implementing a takedown procedure where applicable.
Meta’s Instagram has a Safe Harbor under the DMCA in the USA and the Indian IT Act. It creates a means for users to submit cases of suspected copyright violations, bullying, and other types of abuse.
Freedom of Expression Versus the Right to Restrict Free Speech:
The right to free speech and regulation of user-generated content (UGC) is another intriguing issue. Freedom of speech is prone to abuse and so laws need to be put in place to deal with the negative consequences of harmful content, false information, and even illegal activity. However, too much regulation will lead to a distortion of free speech. Such distortion affects their ability to create, debate, and innovate, which is detrimental to the health of the digital space. Finding the balance between distortion and expression requires a more intelligent approach to protecting people while at the same time worrying about society.
PROBLEMS ENCOUNTERED WHEN REGULATING UGC
- Overregulation: Given such broad or poorly defined laws, there is a risk that legal expression can be stifled. For instance, hate speech or misinformation regulations may sometimes stretch to include political satire, art, or government criticism speech.
- Ambiguity in Vocabulary used: Words such as “harmful” and “inappropriate” are usually not defined, resulting in arbitrary enforcement and discrimination in moderation.
- New and Emerging Technology: The application of AI in content moderation poses a danger of true algorithmic bias. The misuse of AI writing tools can lead to over-censorship, and the not-so-clever programming behind them leads to inadequately contextualized outputs.
Role of the Platforms
With regard to user-generated content, platforms are an essential piece of the puzzle as they strive to strike a balance between “self-regulation, freedom of expression, and intellectual property (IP) protection.” Their responsibilities include:
- Well-defined Guidelines: Platforms should outline policies that are reasonable, understandable, and contestable with regard to content moderation, as well as IP boundaries like copyright, trademarks, and fair use. Reports detailing the removal of content, especially on the basis of alleged IP infringement, can provide insight and foster trust.
- Moderation Without Bias: Under IP law, overreaching moderation, such as aggressive takedown of content deemed harmful or potentially infringing parody, criticism, or transformative works, can lead to silencing dissenting perspectives and abuse of user rights.
- Improved Methods for Resolving Conflicts: Unfounded removal of content, misuse of alleged IP infringements, and restriction of creators’ freedom to express themselves can be minimized with higher standards for content disputes. Rightful owners of the IP must be identified and protected, but there must also be an absence of excessive regulation of creativity.
This blog contains the most salient legal issues related to UGC, such as copyright violation, defamation, and intermediary liability, as well as privacy invasion. Even though some of these frameworks might be available, they are not comprehensive, which calls for a change. To keep up with the changing realities of UGC, it is necessary to work together with lawmakers, platforms and users. Legal measures aimed at maintaining the equilibrium between protecting rights have to be delicate, as these rights should not prevail over the right to exercise and UGC, which has become a vital means of innovative expression.
Author: Anavi Jain, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at Khurana & Khurana, Advocates and IP Attorney.
[i]Shahid, K. (2024) User-generated content (UGC): What it is and why it matters for your brand, Sprout Social. Available at: https://sproutsocial.com/insights/user-generated-content-guide/ (Accessed: 24 January 2025).
[ii] Trade Marks Act, § 30, No. 47 of 1999, India Code (1999).
[iii] Copyright Act, § 53, No. 14 of 1957, India Code (1957).
[iv] Vaidehi, S. (2024) IP and usage rights for user-generated content (UGC), Fashion Law Journal. Available at: https://fashionlawjournal.com/ip-and-usage-rights-for-user-generated-content-ugc/ (Accessed: 24 January 2025).
[v] Bharatiya Nyaya Sanhita, § 356, No. 11 of 2023, India Code (2023).
[vi] Writankar, M. (2011) Social media defamation rules: People have to be careful about what they post on social media websites, The Economic Times. Available at: https://economictimes.indiatimes.com/tech/internet/social-media-defamation-rules-people-have-to-be-careful-about-what-they-post-on-social-media-websites/articleshow/10686349.cms?from=mdr (Accessed: 24 January 2025).
[vii] Vasudev, D. (2024) Conceptualising India’s Safe Harbour in the Era of Platform Governance, SSRN. Available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4727481 (Accessed: 24 January 2025).
[viii] Information Technology Act, § 79, No. 21 of 2000, India Code (2000).
[ix] Shreya Singhal v. Union of India, AIR 2015 SUPREME COURT 1523.
[x] Digital Millennium Copyright Act, 17 U.S.C. § 512 (1998).