User-generated content (UGC) is now a staple of digital marketing. More and more, businesses encourage consumers to contribute content on social media, then incorporate those contributions into consumer-focused advertising and campaigns. UGC, when done well, can boost reach, strengthen connection with a target audience, and help brands better understand what their audience cares about.
The challenge is that UGC can also bring real legal risk. In an informal social media setting, content is shared quickly and can travel widely. A single comment, image or clip may involve third-party rights, personal data, or harmful statements. And by the time an issue is flagged, the content may already have had an impact.
This complimentary Practice Note produced in partnership with Anthony Leung of Haldanes seeks to help legal and compliance teams support marketing with confidence.
The Practice Note focuses on legal risks that can arise from individual pieces of content, particularly where brands “partner” with consumers by inviting submissions (often on third-party platforms such as a brand’s social media page). Key topics include:
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Copyright: Most UGC, pictures, video, sound and text, will attract copyright protection. Uploading/sharing by a consumer and subsequent use by a brand can involve restricted acts such as copying or communicating to the public. If use is not authorised by the copyright owner, both the consumer and brand may face infringement risk.
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Trade marks and passing off: UGC may use identical or similar signs. Depending on how it is used and the circumstances, this can create trade mark infringement risk (including confusion or reputational harm) and, where a well-known badge of origin is involved, passing off risk if the content misrepresents commercial relationships.
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Personal data and privacy: If UGC contains “personal data”, brands leveraging that content may need to obtain consent and consider compliance under the Personal Data (Privacy) Ordinance (PDPO). In extreme cases, the Practice Note flags that issues may extend to the PDPO’s anti-doxxing regime.
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Defamation, malicious falsehood and misinformation: Whether content is defamatory can be context-driven and not always obvious on first review. The Practice Note highlights why notification and “knowledge” matter, and why brands should act expeditiously once on notice to preserve available defences.
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Influencers and “imitating consumers”: The Practice Note notes the importance of brand owners not posting while pretending to be consumers, and the need for influencers to make clear when they are marketing a product. It also flags the risk of false reviews.
The Practice Note also sets out practical safeguards brands can implement:
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Moderation: Pre-moderation can offer protection, but it is labour-intensive and can delay publication (which may affect user experience). Post-moderation may strengthen arguments for statutory defences, but there is a risk unlawful content causes harm before it is removed.
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Notice-and-take-down: A clear policy helps users report problematic content and makes it easier for rights holders to request withdrawal (for example via “report/flag” functionality). The Practice Note notes that brands should remove or disable access promptly on complaint, then assess whether content should be reinstated or permanently removed.
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Consumer terms and conditions: The Practice Note highlights that strong terms can help manage risk, especially where they are prominent, written in simple plain English, publicly available, and expressly agreed (for example by tick-box). It also sets out the key matters those terms should cover, including moderation rights, ownership/licensing, privacy processing, warranties (including non-infringement and no unlawful/false/defamatory content), third-party consents, indemnities, and takedown/removal triggers.
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