One of the decisions that website owners often need to make these days is whether to allow people to add comments or other content to their website. Of itself, this isn’t a legal issue, but a decision to allow comments or other user content on a website does give rise to legal considerations. These considerations may be relevant to you if, for example, you run or are thinking of setting up a legal blog or forum. They may also be relevant to you if you act for clients on website-related matters.

If you allow others to post content to your site, three broad issues arise:

  • whether you need to obtain a licence to re-use content posted to your site by others for purposes other than reproduction on the site itself (eg you might want to publish helpful comments in an ebook);
  • whether to moderate content and, if so, when; and
  • how to protect yourself from liability arising from material posted to your site that infringes third party rights.

Licence to re-use others’ content

As to the first issue, if you wish to use comments or other content posted by others for purposes other than reproduction on your site, it’s advisable to obtain a licence from them prior to their submitting the content. Otherwise they could complain later on that they never allowed you to use their content for any purpose other than the site to which they posted the content. Sometimes the risk here will be small but, in many people’s books, it’s better to be safe than sorry.

I suggest some sample provisions further below.

Moderation

You’ll want to consider whether to review and approve the content before it goes live or to let it go live without review (with or without post-publication review on your part). In either case, there is always the potential for content that infringes another person’s copyright or is defamatory of another person or that breaches another person’s privacy or confidentiality to be posted to your site without you recognising it. Spammy content can also slip through, even when you use a plugin or module (like Akismet for WordPress) to manage it. All this said, the likelihood of such content appearing on your site is considerably lower if you moderate the content before it is published.

Note that in some countries there are statutory defences to copyright infringement and defamation where another person posts copyright infringing or defamatory content to your site without your active involvement and knowledge. The defences usually apply until you know the content is infringing or defamatory, upon which you must take it down or expose yourself to the risk of legal action. In some cases these defences may fall away if you actively review or moderate content before allowing it to be published.

Personally I don’t let comments go live on my sites without reviewing them first (or at least without having approved one of a user’s comments in the past). There’s too much spam and other rubbish floating around on the internet that might otherwise make it onto your site.

Legal protections

Regardless of whether and when you’ll moderate content posted by others, you may wish to include terms of use on your site, that contain legal protections for you, to which people must agree when posting content.

The kinds of clauses that provide you with a licence for subsequent use of user-submitted content and that protect you to some extent from the consequences of infringing, defamatory or other offensive material being posted to your site are set out below.

Note that these sample clauses cannot insulate you from an action by, for example, the true copyright owner or a person defamed. Rather, they seek to give you a right of action against the person that posted the offending content in the event that you were to be sued by the copyright owner or person defamed. Note also that the outgoing licence I grant users in the “My copyright” clause below is limited to the textual content that I write. This is because I typically use images in my posts for which I obtain limited licences from stock photography sites such as bigstockphoto.com or istockphoto.com. Those licences do not permit sub-licensing to others.

Agreement mechanism

It’s important to include a mechanism on your site by which people will be taken to have agreed to such terms. Putting the terms in a footer file that displays small text at the bottom of each page (often a short link that takes one to a separate page of terms) may well not suffice. It’s far better and safer to use either an appropriate “browsewrap” or “clickwrap” mechanism.

A browsewrap mechanism can consist of a link to the terms of use with an accompanying statement, in close proximity to the comment or post “submit” button, along the following lines:

In submitting comments to this site, you will be taken to have agreed to the terms of use.

where “terms of use” is linked to the actual terms of use, which will open in a separate window/tab or pop-up when clicked.

The standard clickwrap mechanism is a check box that must be clicked before a comment (for example) can be submitted. Some consider this approach to be the “gold standard”. If you use WordPress, various plugins exist to make this possible.

Sample licence terms

Copyright

My copyright: Unless indicated otherwise in specific posts or pages, I or my licensors own the copyright in material on [name of site]. You may download, print and store the textual content of my posts and pages for personal or internal organisational purposes. Except where I grant you broader rights in relation to specific content, either on the site or when you ask, all other rights are reserved.

Your copyright: You retain any copyright in contributions you post to the site or send me by email, such as lengthy comments on posts and articles (by the way, these contributions will be considered non-confidential). You grant me a non-exclusive, royalty-free, transferable and irrevocable licence to copy, adapt and print your contributions and to publish them in any media and in any format, including on this website and any related website, and in any podcast, web feed, book, ebook or email newsletter.

Other people’s copyright: If your contributions to the site include all or a substantial part of another person’s copyright work (or any other third party intellectual property), you promise that you have the right to submit it to the site for publication and to grant me the licence mentioned in the previous paragraph.

Unacceptable use

You agree that you will not post or transmit to or from the site any material that is illegal, obscene, defamatory, threatening, infringing of intellectual property rights, confidential, invasive of privacy or otherwise injurious or objectionable. If you do, you agree that you’ll indemnify me fully against all losses, damages and costs (including legal costs) I may suffer as a result of your breaching this term.

Richard Best is a dual qualified lawyer (New Zealand and England & Wales) who has worked in New Zealand, England and Germany, in large law firms, as in-house counsel and now as a sole practitioner and a member of Best + Hancock (a consortium of sole practitioners) and Interwoven Law (an alliance of niche practices). Since late 2006 his primary focus has been on IP/IT/technology law and public law. He is also the author of WP and Legal Stuff, a website that discusses WordPress and legal issues.

Email richard@besthancock.com. Twitter @richard_best.

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