Hosting an online community raises numerous legal and regulatory challenges. Are you, as the community host, legally responsible for content submitted or shared by your members? This content may infringe other people’s intellectual property rights; might be defamatory; or could amount to some form of criminal activity. But do you know your responsibilities in relation to these types of content and activity, and how do you ensure you protect yourself by taking advantage of the legal defences available to avoid liability? And what about Data Privacy? European Data Protection Laws are changing dramatically over the next 2 years. Collection and exploitation of personal data may be a significant asset and driver for establishing our community. And in any event trust, privacy by design and regulatory compliance should be at the heart of your strategy. These issues, along with key Marketing Regulations and understanding your relationship with and responsibilities to third parties - such as Facebook and YouTube, or your hosting provider, will be summarised.

1. Legal Issues
for
Online Communities
24 February 2016
David Deakin
Partner - Lewis Silkin

2. Who is David Deakin?
▶ Digital Media and Technology - commercial lawyer
▶ Online, Mobile, Social
▶ Content, eCommerce, Marketing
▶ Tech, Data, Consumer
▶ 12 years working in-house
▶ growth tech/digital companies
▶ large media/tech companies
▶ NOW back in Private Practice advising online / digital business

3. Who are Lewis Silkin??
Litigation &
Dispute
Resolution
Media, Brands
& Technology
Employment,
Reward &
Immigration
Real Estate &
Development
Corporate
Industry sector focus:
• Marketing and Communications
• Media and Entertainment
• Technology
• Retail
330+ total staff
60 Partners
200+ total
fee earners
Our clients include:
• Havas Media
• House of Fraser
• Samsung
• Haymarket
• Viacom International
• Gleam Futures
• Rovio
• Match.com
Chambers & Partners , 2015:
Band 1 in five areas including:
‘Media & Entertainment: Advertising and Marketing’
‘Employment: Senior Executive’
‘Corporate/M&A: Lower-Mid-Market’
Legal 500, 2015:
Tier 1 in five areas, including:
‘Brand Management’
‘Media & Entertainment’
‘Employment: employers and senior execs’

4. Key Issues: Legal Risk : Mitigation : Key Actions
▶ Intellectual Property / Copyright
▶ Defamation
▶ Moderation
▶ Data Protection
▶ Children
▶ Marketing Regulations
▶ International / Jurisdiction
▶ Terms and Conditions

5. 1. Problematic Content
▶ Who is responsible for what is posted ?
▶ IP : Copyright
▶ Defamation : “Joe Blogs is a @@@@”
: Users vs Host

6. Copyright – what is it ?
▶ photos
▶ music
▶ video
▶ text
INFRINGMENT
▶ copy
▶ show
▶ perform
▶ play
▶ make available

7. Defences
▶ EU : Electronic Commerce Directive 2000 - Article 14
▶ UK : Electronic Commerce (EC Directive) Regulations 2002 - Regulation 19
▶ US : DMCA. Digital Millennium Copyright Act 1998 - S512(c)
• do not have actual / constructive knowledge of
unlawful activity or information
• upon obtaining such knowledge, act expeditiously
to remove or to disable access to the information

8. Defamation – what is it ?
 a statement which is likely to lower the person in the
estimation of right thinking people; or
 which injures a person’s reputation, by exposing them to
hatred, contempt or ridicule
and
 causes serious harm
RESPOSIBILITY
 authors, editors, or publishers

9. Defences
• do not have actual / constructive knowledge of
unlawful activity or information
• upon obtaining such knowledge, act expeditiously
to remove or to disable access to the information
▶ Defamation Act 2013 s5
▶ UK : Electronic Commerce (EC Directive) Regulations 2002 - Regulation 19

10. ~ ~ ~ Moderation
▶ Editorial / Brand <> Legal / Liability
▶ Reactive
▶ Pre
▶ Post
Knowledge

11. IN PRACTICE
▶ Be cautious about active encouragement /
awareness of what site is used for…
▶ Consider type of moderation carefully…
▶ Strict process and information re Section 5…
▶ REACT
▶ Notice and Take Down - act expeditiously

12. ▶ Data Protection Act 1998 – 8 Principles
▶ Consent, Sharing, Security, Transfer
▶ ICO Guidance
▶ http://ico.org.uk/for_organisations/data_protection
▶ Transferring data to the US
Safe Harbour : Privacy Shield
2. Data Protection

13. Data Protection
Complete overhaul of existing European data protection legislation
• Draft Regulation published 25 January 2012
• “Agreement reached” 15 December 2015
• Regulation not Directive > provides more legal certainty
• But at the expense of being more prescriptive
– “harmonisation at a higher level”
When will the Regulation come into effect ?
• 2 year implementation period (phased implementation?).
: EU General Data Protection Regulation

14. EU General Data Protection Regulation
 More Data Subject rights
 Broader definition of personal data
 Higher level of Consent
 More detailed specificity on use/consent
 Implementing privacy by design and by default
 Privacy impact assessments
 Drafting and implementing policies
 Record keeping
 Appointment of DPOs
 Accountability
 Processors direct compliance obligation
 Extended security obligations
 Significant increase in the value of regulatory
penalties : Euro 20M / 4% turnover

15. 3. Children
PARENTAL CONSENT
▶ COPA
▶ ICO / DMA guidance
▶ GDPR <16
A practical guide for providers of social media and
interactive services …examples of good practice
from leading technology companies, and advice from
NGOs and other online child safety experts.
Its purpose is to encourage businesses to think
about “safety by design” to help make their platforms
safer for children and young people under 18.

16. 4. Marketing Regulations
▶ Digital Remit
▶ All locations
▶ Adopting UGC
▶ ASA / CAP Code
▶ Legal, Decent and Honest
▶ Claims and Comparisons
▶ Alcohol / Children
▶ “Obviously Identifiable as a Marketing Communication”
▶ Celebs and brand advocates
▶ Native content / adverts
▶ Competitions and Promotions
▶ Free Prize Draw / Competitions

17. 5. Global Reach

18. 6. T&C
▶ Licenses to use content
▶ AUP
▶ FAQ
▶ Warranty / Indemnity from users
▶ Disclaimer from operator
▶ Moderation - right but not obligation
▶ Law and Jurisdiction

19. Actions : KEY TAKE AWAYS
▶ Moderate / React expeditiously
▶ Prepare for new EU Data Protection Regulation
▶ Understand core Marketing and Promotions rules
▶ Audit T&C and Privacy Policy

20. David Deakin:
david.deakin@lewissilkin.com
Tel: 020 7074 8395