How can I tell whether content is user-generated?

Ask who is responsible for creating or developing it, because an information content provider is any person or entity responsible, in whole or in part, for the creation or development of the information. A claim that content came from users is judged by the net impression the site's statements convey, and no single express statement is required.

Can a business describe its content as user-generated when it created the content itself?

The Commission treated that as deception in Jerk, LLC, where it granted summary decision on both counts against the company. The first count charged that content on Jerk.com was represented as generated by users when it was almost entirely “scraped” from Facebook.

Does a disclaimer in the terms of use cure a misleading claim about who created the content?

Not if the rest of the site conveys a different net impression, because a material representation likely to deceive a reasonable consumer violates Section 5 wherever it appears, including in the terms and conditions. A disclaimer helps only if it is sufficiently prominent and unambiguous to change the apparent meaning of the claims and to leave an accurate impression.

Is a website liable for what its users post?

Generally not as the publisher or speaker of information provided by another information content provider, but the protection has limits. Section 230 does not limit or expand any law pertaining to intellectual property. Nor does it impair enforcement of 47 U.S.C. § 223 or any other federal criminal statute.

How fast must a platform act on a report of a nonconsensual intimate image?

A covered platform must act as soon as possible and not later than 48 hours after receiving a valid removal request, by removing the depiction and making reasonable efforts to remove known identical copies.

Social ProofTerm

User-generated content (UGC)

Berkeley Robinson, Managing Attorney at Robinson Law Firm PLLC

Author

Berkeley Robinson, Esq.

Managing Attorney, Robinson Law Firm PLLC

Berkeley has served as the go-to counsel for many scaling businesses in a transactional and litigation management capacity. Before becoming an attorney, Berkeley grew sales teams, ran online marketing campaigns, and did everything else an entrepreneur does—and still does today as the founder of two online businesses.

Definition

The government has not defined "User-generated content (UGC)" in a statute or regulation.

Based on our data, user-generated content is content that users, rather than the operator of a website or online service, create and post there, such as messages, videos, images, games, and audio files. Source: 47 U.S.C. § 223a A related federal statute defines the term "consumer generated media" as "content created and made available by consumers to online websites and services on the Internet, including video, audio, and multimedia content." Source: 47 U.S.C. § 153(14)

Key legal rules

The rules below come from Section 230 and the Commission's opinion in Jerk, LLC. Together they show when a business is treated as the speaker of online content and how claims that content is user-generated are judged:

Under 47 U.S.C. § 230(c)(1), no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider. Source: 47 U.S.C. § 230
An "information content provider" is any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service. Source: 47 U.S.C. § 230
In deciding what a claim about content conveys, the primary evidence is the statements themselves, and the question is the "net impression" they convey. Source: In re Jerk, LLC, Opinion of the Commission
Under Section 5 of the FTC Act, a material representation that is likely to deceive a consumer acting reasonably is a violation regardless of whether it is found in the terms and conditions or elsewhere. Source: In re Jerk, LLC, Opinion of the Commission
A disclaimer can mitigate a false statement only if it is sufficiently prominent and unambiguous to change the apparent meaning of the claims and to leave an accurate impression. Source: Opinion of the United States Court of Appeals for the First Circuit (Jerk, LLC; Fanning)

For the sake of space, this page lists only the primary rules related to this term that most businesses should follow. More may apply to your situation, and your unique facts affect how they apply.

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Why these rules exist

Under Section 230 of the Communications Act, no provider or user of an interactive computer service is treated as the publisher or speaker of information provided by another information content provider. Source: 47 U.S.C. § 230 An information content provider, in turn, is any person or entity responsible, in whole or in part, for creating or developing the information. Source: 47 U.S.C. § 230 Because the label turns on who created the content, a site that hosts what its users wrote stands differently from a site that wrote the content itself, and a site that blurs the two can mislead its audience.

The blur matters to consumers because the author of content shapes how they use a service. In Jerk, LLC, the First Circuit explained that a consumer’s belief that an acquaintance made his or her profile page would influence the decision to use the site or purchase a membership. Source: Opinion of the United States Court of Appeals for the First Circuit (Jerk, LLC; Fanning) For platforms that host user content, the notice-and-removal statute sets a fixed deadline, which tells the host how quickly it must act once an individual reports a nonconsensual intimate image. Source: 47 U.S.C. § 223a

Enforcement examples

In re Jerk, LLC (social networking website claiming user-generated profiles)

In re Jerk, LLC, Opinion of the Commission

Jerk.com was a social media website that invited users to create profiles of other individuals and rate those profiled as a “jerk” or “not a jerk.” Source: In re Jerk, LLC, Opinion of the Commission The administrative complaint alleged that, although Jerk, LLC claimed its website contained only user-generated content, respondents actually created or caused to be created the vast majority of Jerk profiles using information from Facebook. Source: In re Jerk, LLC, Part 3 Administrative Complaint The site's “About Us” page said that opinions, advice, statements, and other content made available through jerk.com were those of their respective authors and not of Jerk LLC. Source: In re Jerk, LLC, Opinion of the Commission Its “Post a Jerk” page told visitors to “Fill out the form below to find or create a profile on jerk. Include a picture if you can and as much other information as possible.” Source: In re Jerk, LLC, Opinion of the Commission On Twitter, Jerk posted “Find out what your ‘friends’ are saying about you behind your back to the rest of the world!” Source: In re Jerk, LLC, Opinion of the Commission A second count alleged that respondents falsely represented that users who bought a membership would receive additional benefits, including the ability to dispute information posted on the site, when consumers received nothing in return. Source: In re Jerk, LLC, Opinion of the Commission

Outcome. The Commission found no express representation that users created the content, but concluded that the statements together made an implied representation that the content, including names and photographs, was created by Jerk users and reflected those users’ views of the profiled individuals. Source: In re Jerk, LLC, Opinion of the Commission On that basis the Commission granted summary decision on both counts against Jerk and against Mr. Fanning. Source: In re Jerk, LLC, Opinion of the Commission The First Circuit held that Jerk.com contained false and material statements about the source of its content and the benefits of a paid membership, so that the grant of summary decision was proper. Source: Opinion of the United States Court of Appeals for the First Circuit (Jerk, LLC; Fanning) On materiality, the court saw no logical gap in the Commission’s view that the source of profile pages goes to a central characteristic of a social networking website. Source: Opinion of the United States Court of Appeals for the First Circuit (Jerk, LLC; Fanning)

Exposure

The order the Commission issued in Jerk, LLC prohibited the respondents from misrepresenting the source of any content on a website, and the prohibition was not limited to Jerk.com: it applied to the marketing, promoting, or offering for sale of any good or service. Source: In re Jerk, LLC, Opinion of the Commission The order also prohibited the respondents from disclosing, using, selling, or benefitting from customer information or consumers’ personal information obtained in connection with operating Jerk, and it required them to dispose of that information within 30 days after entry of the order. Source: In re Jerk, LLC, Opinion of the Commission As the Commission issued it, the order also imposed record-keeping, notification, and reporting requirements and terminates in twenty years. Source: In re Jerk, LLC, Opinion of the Commission

The exposure reaches individuals as well as the company, because an individual may be liable for a corporate entity's deceptive acts or practices if the individual participated directly in them or had the authority to control them. Source: In re Jerk, LLC, Opinion of the Commission Treating the statements as protected speech does not avoid that liability, since the First Amendment does not protect misleading commercial speech. Source: Opinion of the United States Court of Appeals for the First Circuit (Jerk, LLC; Fanning)

Hosting user content carries its own exposure. A failure to reasonably comply with the notice and takedown obligations for nonconsensual intimate visual depictions is treated as a violation of a rule defining an unfair or deceptive act or practice under the FTC Act. Source: 47 U.S.C. § 223a Criminal penalties apply as well: displaying obscene material to minors through an interactive computer service is punishable by a fine under title 18, imprisonment of not more than two years, or both. Source: 47 U.S.C. § 223(d) An offense involving an adult under the nonconsensual intimate-image provisions carries a fine, imprisonment of not more than 2 years, or both, and an offense involving a minor carries imprisonment of not more than 3 years. Source: 47 U.S.C. § 223(h)(4) Section 230 does not shield a company from those criminal statutes. Source: 47 U.S.C. § 230

FAQs

1.47 U.S.C. § 223a. 47 U.S.C. § 223aSee also 47 U.S.C. § 153. 47 U.S.C. § 153(14)
2.47 U.S.C. § 153. 47 U.S.C. § 153(14)
3.47 U.S.C. § 230. 47 U.S.C. § 230