I. Introduction
"I bought this product and it was terrible! I can't believe I spent my hard-earned money on this piece of junk. But on the bright side, the packaging was excellent. It took me hours to open it." - product review.
User-generated content is any type of content that is created and published by users on your ecommerce site. This can include product reviews, comments, photos, and other types of content. As an ecommerce business, it's important to have a clear set of rules and guidelines in place for user-generated content, as it can significantly impact the user experience and the overall reputation of your site.
In this blog post, we'll discuss the importance of addressing user-generated content in your Terms of Use and provide tips for how to handle it effectively. By having a clear and comprehensive policy in place, you can protect your business and create a positive and welcoming environment for your users.
II. Define user-generated content in your Terms of Use
It's important to clearly define user-generated content in your Terms of Use to ensure that there is no confusion about what is covered by your policy. Some examples of user-generated content that you may want to include in your definition are:
- Product reviews and ratings
- Comments and feedback
- Photos and videos
- Blog posts and articles
- Social media posts and hashtags
- Questions and answers
- Product recommendations
- Personal profiles
- Events and listings
By including a comprehensive list of types of user-generated content, you can ensure that your policy covers all forms of content that may be created and published by users on your site.
In addition to defining user-generated content, it's also important to address ownership and licensing in your Terms of Use. You should make it clear that the user retains ownership of their content, but grant the ecommerce site a license to use it. This could be worded as follows:
"By submitting, posting, or displaying any user-generated content on our site, you grant us a worldwide, perpetual, irrevocable, royalty-free, and fully sublicensable license to use, reproduce, adapt, modify, publish, translate, create derivative works from, distribute, and display such content in any media. You represent and warrant that you own or have the necessary licenses, rights, consents, and permissions to grant the foregoing license and that the use of your user-generated content by us will not violate any intellectual property rights or any other rights of any third party."
Alternatively, if you operate a website that allows users to create and sell their own products, you may want to include language in your Terms of Use that addresses the ownership and licensing of those products. For example:
"Users who sell products on our site retain ownership of their products, but grant us a license to display and sell their products on our platform. By listing a product for sale on our site, you represent and warrant that you have the necessary rights and permissions to sell the product and that the sale and display of the product on our site will not violate any intellectual property rights or any other rights of any third party."
Including clear and concise language about ownership and licensing in your Terms of Use will help to ensure that there is no confusion about who owns the content that is created and published on your site, and will also help to protect your business from any potential legal issues related to user-generated content.
III. Establish rules for user-generated content
In addition to defining user-generated content and addressing ownership and licensing, it's important to establish clear rules for user-generated content in your Terms of Use. These rules should be designed to protect your business and create a positive user experience for all visitors to your site.
Some common provisions to include in your rules for user-generated content are:
- Prohibitions on inappropriate or offensive content
It's important to set clear boundaries for the types of content that are acceptable on your site. This could include language prohibiting content that is discriminatory, hateful, threatening, or otherwise inappropriate. You may also want to include provisions prohibiting the posting of spam or unsolicited commercial content.
For example:
"You agree not to post any content that is unlawful, threatening, abusive, libelous, defamatory, obscene, pornographic, or otherwise inappropriate. You also agree not to post any spam or unsolicited commercial content."
- Requirement that users must have the right to post their content
To protect your business from potential legal claims related to user-generated content, it's important to require users to represent and warrant that they have the necessary rights and permissions to post their content on your site. This could include language requiring users to ensure that their content does not violate any intellectual property rights or any other rights of any third party.
For example:
"By submitting, posting, or displaying any user-generated content on our site, you represent and warrant that you own or have the necessary licenses, rights, consents, and permissions to do so and that the use of your user-generated content by us will not violate any intellectual property rights or any other rights of any third party."
- Indemnification clause
An indemnification clause is a provision in your Terms of Use that requires users to indemnify (or compensate) your business for any legal claims that may arise from their use of your site or their user-generated content. This can help to protect your business from legal liability related to user-generated content.
For example:
"You agree to indemnify and hold us and our affiliates, officers, agents, and employees harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of your use of our site, your violation of these terms, or your violation of any rights of another."
In addition to these provisions, you may also want to include rules related to the formatting and quality of user-generated content, as well as any other guidelines that you want to establish for your site. By setting clear rules for user-generated content in your Terms of Use, you can create a positive and welcoming environment for your users while also protecting your business.
Finally, it's important to note that while you can establish rules for user-generated content in your Terms of Use, you will also need to have a plan in place for enforcing those rules. This could include a process for moderating user-generated content and removing any content that violates your rules. It's also a good idea to have a mechanism in place for handling complaints or disputes related to user-generated content, such as a process for reporting inappropriate content or a system for resolving disputes between users. By having a clear and well-defined process for enforcing your rules for user-generated content, you can ensure that your site remains a positive and welcoming place for all users.
- Limitation of liability
A limitation of liability provision is something that you must have regardless of whether you deal with UCG or not. It helps limit your exposure to legal liability related to user-generated content and other things. This could include language limiting your liability for any damages that may arise from user-generated content, or language specifying that you are not responsible for the accuracy or reliability of user-generated content.
For example, the Twitter Terms of Service include a limitation of liability provision that states:
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE TWITTER ENTITIES SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY LOSS OF PROFITS OR REVENUES, WHETHER INCURRED DIRECTLY OR INDIRECTLY, OR ANY LOSS OF DATA, USE, GOODWILL, OR OTHER INTANGIBLE LOSSES, RESULTING FROM (i) YOUR ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE THE SERVICES; (ii) ANY CONDUCT OR CONTENT OF ANY THIRD PARTY ON THE SERVICES, INCLUDING WITHOUT LIMITATION, ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES; (iii) ANY CONTENT OBTAINED FROM THE SERVICES; OR (iv) UNAUTHORIZED ACCESS, USE OR ALTERATION OF YOUR TRANSMISSIONS OR CONTENT. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF THE TWITTER ENTITIES EXCEED THE GREATER OF ONE HUNDRED U.S. DOLLARS (U.S. $100.00) OR THE AMOUNT YOU PAID TWITTER, IF ANY, IN THE PAST SIX MONTHS FOR THE SERVICES GIVING RISE TO THE CLAIM. THE LIMITATIONS OF THIS SUBSECTION SHALL APPLY TO ANY THEORY OF LIABILITY, WHETHER BASED ON WARRANTY, CONTRACT, STATUTE, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, AND WHETHER OR NOT THE TWITTER ENTITIES HAVE BEEN INFORMED OF THE POSSIBILITY OF ANY SUCH DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
IV. Moderate user-generated content
In order to maintain a positive and welcoming environment on your ecommerce site, it's important to have a plan in place for moderating user-generated content. This could include a process for reviewing and approving content before it is published, as well as a mechanism for removing inappropriate or offensive content.
Here is some sample verbiage that you could include in your Terms of Use to outline your moderation process:
"We reserve the right to review, edit, or remove any user-generated content that we deem inappropriate, offensive, or in violation of these terms. We are not responsible for the accuracy or reliability of user-generated content, and we do not endorse any opinions expressed in user-generated content. If you believe that any user-generated content on our site violates these terms or is otherwise inappropriate, please report it to us using the report abuse feature or by contacting us at [insert contact information]."
Other platforms handle moderation in a variety of ways. For example, social media sites such as Facebook and Twitter have teams of moderators who review and remove inappropriate content, as well as algorithms that flag content for review. Ecommerce sites such as Amazon and Etsy also have processes in place for moderating product reviews and other user-generated content.
One way to ensure that your moderation process is effective is to establish clear guidelines for what types of content are acceptable on your site. This could include language prohibiting content that is discriminatory, hateful, threatening, or otherwise inappropriate. You may also want to have a mechanism in place for handling complaints or disputes related to user-generated content, such as a process for reporting inappropriate content or a system for resolving disputes between users.
In addition to moderating user-generated content, it's also important to have a plan in place for handling legal issues that may
arise from user-generated content. This could include having a process in place for responding to intellectual property claims or other legal disputes related to user-generated content.
It's also a good idea to include a disclaimer in your Terms of Use stating that you are not responsible for the accuracy or reliability of user-generated content and that you do not endorse any opinions expressed in user-generated content. This can help to protect your business from legal liability related to user-generated content.
For example, the Yelp Terms of Use include the following disclaimer:
"YELP DOES NOT ENDORSE, WARRANT, OR GUARANTEE THE ACCURACY OR RELIABILITY OF ANY REVIEW, COMMENT, OR CONTENT APPEARING ON THE SITE. YOU AGREE THAT YOU MUST EVALUATE, AND BEAR ALL RISKS ASSOCIATED WITH, THE USE OF ANY REVIEWS, COMMENTS, OR CONTENT, INCLUDING ANY RELIANCE ON THE ACCURACY, COMPLETENESS, OR USEFULNESS OF SUCH REVIEWS, COMMENTS, OR CONTENT."
By having a clear and comprehensive moderation policy in place, you can protect your business and create a positive and welcoming environment for your users.
In addition to setting clear rules for user-generated content and establishing a moderation process, it's also important to consider the resources that you will need to devote to moderation. This could include hiring moderators or setting aside time and resources for reviewing and removing inappropriate content.
Depending on the size and complexity of your ecommerce site, you may also want to consider using automated tools or algorithms to assist with moderation. For example, you could use machine learning algorithms to flag inappropriate content or use moderation software to streamline the review process.
It's also a good idea to have a process in place for handling appeals or disputes related to moderation decisions. This could include providing a mechanism for users to report content that has been removed or to appeal moderation decisions.
Finally, it's important to be transparent with your users about your moderation policies and processes. You may want to include information about your moderation policies in your Terms of Use or on a separate page on your site. By being transparent about your moderation policies, you can help to build trust with your users and create a positive and welcoming environment for all.
Here are some additional considerations for moderating user-generated content on your ecommerce site:
- Consistency: It's important to be consistent in your moderation decisions. This means applying your rules and policies consistently across all types of content and users. Being consistent can help to create a fair and predictable environment for your users and can also help to protect your business from legal liability.
- Transparency: As mentioned earlier, it's important to be transparent with your users about your moderation policies and processes. This can help to build trust with your users and create a positive and welcoming environment for all. You may want to include information about your moderation policies in your Terms of Use or on a separate page on your site.
- User feedback: Consider soliciting feedback from your users about your moderation policies and processes. You may want to ask for feedback on specific moderation decisions or ask for general feedback on how you can improve your moderation process. Listening to your users can help you to identify any issues or concerns and can also help you to improve your moderation policies over time.
- Scalability: If your ecommerce site grows and attracts more users, you may need to revisit your moderation policies and processes to ensure that they are scalable. This could include hiring more moderators, investing in automated tools or algorithms, or revising your policies to make them more efficient.
- Train your moderators: If you have moderators reviewing user-generated content, it's important to provide them with training on your moderation policies and processes. This can help to ensure that they are able to effectively review and remove inappropriate content and that they are consistent in their decisions.
By considering these factors, you can create a moderation process that is fair, transparent, and effective, and that helps to create a positive and welcoming environment for all users of your ecommerce site.
V. Address intellectual property issues related to user-generated content
User-generated content can raise a variety of intellectual property issues, including issues related to copyright, trademark, and patent law. It's important to address these issues in your Terms of Use to protect your business and to ensure that you are complying with the law.
Some provisions to consider including in your Terms of Use to address intellectual property issues related to user-generated content are:
- Ownership and licensing of user-generated content
It's important to clarify in your Terms of Use who owns the rights to user-generated content and how that content can be used. This could include language specifying that users retain ownership of their content but grant you a license to use that content on your site. You may also want to include provisions addressing how users can use content that is owned by other users or by your business.
For example, the YouTube Terms of Service include the following provision related to ownership and licensing of user-generated content:
"By submitting User Content to YouTube, you hereby grant to YouTube a worldwide, non-exclusive, royalty-free, sublicensable, and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the User Content in connection with the YouTube Service and YouTube's (and its successors' and affiliates') business, including without limitation for promoting and redistributing part or all of the YouTube Service (and derivative works thereof) in any media formats and through any media channels."
- Intellectual property infringement
It's also important to include provisions in your Terms of Use addressing intellectual property infringement. This could include language requiring users to respect the intellectual property rights of others and prohibiting the posting of content that infringes on the rights of others. You may also want to include provisions addressing how you will respond to intellectual property infringement claims.
For example, the Wikipedia Terms of Use include the following provision related to intellectual property infringement:
"You agree not to post any Content that infringes any patent, trademark, trade secret, copyright, or other proprietary right of any party. If you believe that your work has been copied in a way that constitutes copyright infringement, please provide us with the following information: (i) a description of the copyrighted work that you claim has been infringed; (ii) a description of where the alleged infringing material is located; (iii) your address, telephone number, and email address; (iv) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; (v) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf."
Here are some additional considerations for addressing intellectual property issues related to user-generated content in your ecommerce site's Terms of Use:
- DMCA notices: If your site is based in the United States, you may want to include provisions in your Terms of Use related to the Digital Millennium Copyright Act (DMCA). The DMCA provides a safe harbor for online service providers that allows them to avoid liability for copyright infringement by their users if they follow certain procedures for handling copyright infringement claims. To qualify for the safe harbor, you must have a policy in place for addressing copyright infringement claims and must follow certain procedures when receiving a DMCA notice.
- Trademark issues: User-generated content can also raise trademark issues, such as the use of trademarks in product reviews or other types of content. It's important to address these issues in your Terms of Use to protect your business and to ensure that you are complying with the law. You may want to include language prohibiting the use of trademarks in a way that could confuse or mislead users, or requiring users to obtain permission before using trademarks in their content.
- Patent issues: User-generated content can also raise patent issues, such as the use of patented technology in product reviews or other types of content. It's important to address these issues in your Terms of Use to protect your business and to ensure that you are complying with the law. You may want to include language prohibiting the use of patented technology in a way that could infringe on the rights of others, or requiring users to obtain permission before using patented technology in their content.
To do:
- Educate your users: It's important to educate your users about intellectual property issues and your policies related to these issues. You may want to include information about intellectual property in your Terms of Use or on a separate page on your site. You could also consider providing resources or information to help users understand their rights and responsibilities related to intellectual property.
- Respond to intellectual property claims: If you receive a notice of intellectual property infringement or a dispute related to intellectual property, it's important to take prompt and appropriate action. This could include removing the disputed content, contacting the user who posted the content to request that they remove or modify it, or seeking legal advice.
- Protect your own intellectual property: In addition to addressing intellectual property issues related to user-generated content, it's also important to protect your own intellectual property. This could include registering your trademarks and copyrights, and including provisions in your Terms of Use that prohibit the unauthorized use of your intellectual property.
VI. Conclusion
In this blog post, we've discussed the importance of including provisions in your ecommerce site's Terms of Use related to user-generated content. By clearly defining user-generated content, establishing rules for user-generated content, and moderating user-generated content, you can protect your business and create a positive and welcoming environment for your users. It's also important to address intellectual property issues related to user-generated content in your Terms of Use to ensure that you are complying with the law.
Managing user-generated content can be challenging, but by following best practices and being proactive in addressing potential issues, you can effectively manage user-generated content on your ecommerce site and create a positive and welcoming environment for all.
In addition to the provisions discussed in this blog post, you may also want to consider other issues related to user-generated content, such as privacy, data protection, and other legal issues. It's a good idea to consult with a lawyer to ensure that your Terms of Use adequately address all of these issues and protect your business.
By including well-crafted provisions related to user-generated content in your Terms of Use, you can effectively manage user-generated content on your ecommerce site and create a positive and welcoming environment for all users.
