United Arab Emirates: Social Media Law: User-Generated Content

Meet Gowlessence, the latest beauty brand to pop up on your social media feed. Gowlessence produces cleansers, creams and serums that its customers swear make them look good on the outside, while also making them feel good on the inside. Gowlessence's demographic is millennials that justify their indulgence on "self-care" by investing in Gowlessence's promise of organic, cruelty-free products and lifestyle.

Gowlessence's advertising campaign for its new Self-Care Serum is being devised. The majority of Gowlessence's sales in the previous year came from "click-throughs" and "swipe-ups" on its Instagram; following this success, the brand decides to invest heavily in posting like-worthy content. As such, Gowlessence's marketing team come up with a three-pronged plan to deliver a beautifully curated profile to attract maximum sales.

Gowlessence intends to post: (1) reposted content it's found on the internet, including other Instagram accounts (for example, a "Winning Baby" meme congratulating itself on removing its makeup after a night out); (2) re-posted content created by its followers, where Gowlessence has been tagged (for example, a happy customer glowing as a result of Gowlessence products); and (3) re-posted content that Gowlessence has paid its influencers to produce (user-generated content (UGC)). This series of articles will examine the challenges for brands running campaigns involving user-generated content.

User-generated content

Gowlessence likes to re-post images posted by its followers where its products are featured. This is a useful marketing tool in influencing its audience - if they see a "real-life" follower looking glowy - the result of a Gowlessence product - then they're more likely to make that purchase too. Gowlessence wonders why there's no "re-post" button on Instagram, as this would make this process a lot more convenient. However, Instagram was never designed for "re-grams". In fact, under Instagram's terms of service, account holders are responsible for "proper use" of content shared on the platform - any conduct that isn't, is a violation of its terms of service.

Though, with Instagram not seeming to take independent action against those re-posting UGC without permission (apart from when put on notice from copyright holders), utilising UGC is a practice that Gowlessence intends to continue. Nevertheless, there are pitfalls which Gowlessence must be aware of when reposting UGC, to avoid unfavourable legal ramifications.

Permission

Often, Gowlessence will spot great UGC when scrolling through its "explore" page on Instagram. Gowlessence has heard about the myth that if the content has been uploaded publicly, it's free to use. Unfortunately, this myth overlooks the core legal concept of copyright. Uploading content does not void its copyright protection and the need to obtain the consent of the copyright owner to use it. As Gowlessence's followers own the copyright in their images, Gowlessence must get permission to re-post the photos. If not, Gowlessence runs the risk of infringing other users' copyright. Fortunately, Gowlessence has found that its followers usually do give their permission, as they are excited about the prospect of being featured on Gowlessence's Instagram feed or story.

Explicit permission

The most prudent way for Gowlessence to gain permission before posting UGC is by obtaining explicit permission from the original content creator. To do this, Gowlessence should manually contact users to ask them for explicit permission to re-post their content - either through a rights management system, or though commenting/direct messaging them. This way, Gowlessence will have a "paper trail" showing the explicit permission given to post the UGC to counter any accusations of copyright infringement.

Implicit permission

The second way that Gowlessence can get consent from its followers to use their UGC is to obtain implicit permission. Gowlessence regularly posts stories calling on its followers to post pictures of themselves with Gowlessence products, promising that the best content will be re-posted on its account. Gowlessence stipulates that followers should use the #GowlessenceGlowUp hashtag when posting. Where users include this hashtag in their content, this is implicit permission from users that Gowlessence can use that UGC.

However, while this mechanism would constitute "interim" permission, this alone does not constitute formal consent. Even if an image depicts Gowlessence products or brand, the copyright in the image is still owned by its original creator. This remains the case even if Gowlessence includes a link in its bio to its terms and conditions (which cover its use of UGC). Therefore, it would be prudent for Gowlessence to receive explicit permission from users to ensure any future legal issues are avoided - especially if Gowlessence intends to use the UGC for commercial purposes.

Third parties

Third party intellectual property

Gowlessence will need to consider its position where there is third-party content embedded in the UGC, which may need separate licensing. For example, if a user posts a story of themselves wearing Gowlessence's Loose Lips Lipstick with a song playing in the background, rather than going through the hassle of securing a synchronisation licensing fee for use of that song, it would be more efficient for Gowlessence to re-post the video with no sound.

Third party privacy

Gowlessence has an office in the UAE to service its large client base there. The UAE stands out from other jurisdictions in that it has very strict privacy laws relating to personal privacy. The various laws which cover privacy make it a criminal offence to use digital means to breach someone else's privacy, including by taking pictures of others, or publishing or displaying those pictures. Additionally, UAE copyright law states that, in the absence of an agreement to the contrary, a person who takes a picture of another cannot distribute or publish such picture without the consent of the person appearing in the picture.

Gowlessence therefore must be extremely careful when featuring UGC on its UAE social media, especially where the content features third parties. When asking for permission from the account holder of the UGC to use the content, Gowlessence should also confirm that any third parties in the content also consented to their appearance. If this proves too cumbersome, Gowlessence should steer clear of re-posting any UGC featuring third parties in the UAE.

Reputation management

Gowlessence is keen to ensure it receives all the appropriate permissions when posting UGC - not just to avoid any legal issues, but also to dodge any reputational risks. A user using the #GowlessenceGlowUp hashtag may not appreciate that their image may be posted for all of Gowlessence's followers to see. While posting UGC is a beneficial way for Gowlessence to interact with its followers, Gowlessence should be aware of the legalities of UGC - so that it can avoid a situation where UGC creators who have not given their consent attempt to claim damages from the brand to compensate for a licence fee.

Check out our previous instalments on the ownership of social media content:

Read the original article on GowlingWLG.com.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Events from this Firm
3 Jul 2019, Seminar, London, UK

Hear the latest thoughts and developments on TUPE from our employment experts.

19 Sep 2019, Seminar, Birmingham, UK

Providing GCs, Heads of Legal and senior in-house lawyers with timely, topical and practical legal advice on a variety of topics.

26 Sep 2019, Seminar, London, UK

Providing GCs, Heads of Legal and senior in-house lawyers with timely, topical and practical legal advice on a variety of topics.

 
In association with
Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions