Fuzzy content with some clear problems!

Today's media world is obsessed by the word "digital". Broadcasters, no longer in awe of the vast possibilities available with digital, are now seeking ways to use the technology to provide practical solutions to everyday issues.

In fact, the past five years has seen a radical shift in the mentality of broadcasters - they no longer talk digital, they just do it.

The digital format provided an incredible leap for the broadcast medium, and everyone was dazzled by its shiny buttons and dials. Broadcasters thought that customers and viewers were watching and were similarly dazzled. Funnily enough, they were not.

These customers and viewers were also on a journey of discovery. They were embracing the concept of digital technology, discovering their potential as content creators.

They found that they could make a 30-second clip on a phone and upload it to a computer and email it to friends. Grab the digital recorder and capture a breaking news event. Create video clips to composed music and put them on their own website, maybe even sell some downloads or DVDs.

The world was turning topsy turvy. Customers and viewers, previously passive users of broadcast material, were now creating their own content. Websites featuring what is called, user- generated content, experienced an exponential growth in use, with the names of many sites becoming part of normal vocabulary - YouTube, MySpace and FaceBook are an integral part of life rather than an entertainment choice.

Savvy broadcasters were always going to be keen to get in on the act. But the broadcast environment is different to the on-line environment.

In seeking and exploiting user-generated content, many broadcasters are not considering the laws that might be involved and how they should be addressed.

Defamation

No one, not even the creators themselves, would dispute that the quality of UGC varies from the downright appalling to the exceptional. This variation in quality is generally not evident with content produced by traditionally trained news journalists or content creators. The most obvious potential issue that arises from low quality content is the inclusion of defamatory material.

Dealing with this problem is incredibly difficult. Defamatory material can expose a broadcaster to not only legal action but damaging publicity. It is important to remember that the words "I didn't make this content" cannot be used as a defence to defamation! An action in defamation can be taken against anyone who publishes defamatory material.

So it is imperative that broadcasters think very carefully about the content of UGC. Firstly, is the content referring to an identifiable person? Secondly, is the content saying or implying something that would make other people think negatively about the identifiable person? If yes to both, then you should immediately address the issue with the content creator because you will need their assistance in deciding if you are going to proceed with the broadcast.

Can they help you to prove that the material is true? Have they edited the content in any way to alter the natural meaning of the original material? You may need to see the content in its unedited state to prove this to your satisfaction.

If in doubt, see a lawyer for guidance before you broadcast. It is quicker and cheaper than seeing a lawyer to formulate your defence after broadcast!

Copyright breaches

Digital equipment makes it incredibly easy to copy material and include it in new content. Even a cursory glance at YouTube will reveal that the majority of its material is compiled from existing music and images.

YouTube will take down material if it is informed of a copyright breach. A broadcaster does not have access to that simple practical remedy and a copyright breach could cost money. It is suggested that all content creators sign a short document that warrants that the material is original and does not infringe the rights of third parties. It should include a full indemnity for a breach of that warranty.

If you usually collect UGC through your website, consider including terms of supply with a click box to agree to those terms. If UGC comes to you via a mobile phone, consider an immediate reply that also directs users to the website to agree to those terms of supply. If you physically collect UGC, the terms can be printed and signed by the content creator.

In relation to the copyright that exists in original content, it is probable that, in supplying it to a broadcaster, the creators are granting an implied licence to broadcast.

This mirrors the implied right to publish that a reader grants to a newspaper when they send in a letter to the editor. However, be careful in making this assumption. If litigation arises, a court may read an implied licence very narrowly. It is therefore best practice to include a specific licence to use the material within the terms of supply you are already creating because of the previous paragraph.

Additionally, consider a notice on your website that says that any materials sent to the broadcaster are accepted only on the condition that a perpetual licence to broadcast is granted.

Crimes on film

The UK has had serious cultural issues with "happy slapping". This is where a person or group of people attacks a third party while a friend films it on their mobile phone.

The film is then circulated, possibly put onto YouTube or given to the press. A recent UK case found that the person who held the camera phone was guilty as an accessory to the crime. A broadcaster should still be very careful about footage of such an attack, even if it is from another country.

The broadcasting of these attacks should be considered in light of local broadcasting regulation as a breach of these regulations could affect your licence. It is recommended that this vision be either refused or presented extremely carefully. You should consider police involvement if the vision was created in your local market.

Privacy & confidentiality

There are few laws relating to privacy in the Middle East region. However, confidentiality in relation to commercial transactions is definitely a part of the law of this region and is usually a term of any commercial contract or relationship. So if the UGC contains a reference to a commercial transaction, such as a development deal or a finance contract, you should be wary of its ability to be broadcast. Immediately question how the creator gained access to this material.

And be sceptical of the answers you may receive. If you are in doubt, it is wisest not to publish the material. In accepting UGC, it is easy to ignore the potential for legal issues. However broadcasters must ensure that processes are in place to protect them so that UGC can grow to become an important part of their business.

For further information, contact The Rights Lawyers (www.therightslawyers.com).

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