Must a Business Obtain Permission to Republish Consumer-Generated Social Media Content?

Marketers are increasingly turning to user-generated content to promote their products. Brands frequently share and repost comments, photos or videos that consumers post online mentioning or depicting products.

When marketers find social media photos or videos of people wearing their shoes or clothes or holding their soft drink, they may share the posts or otherwise reuse them online. Many brands find such consumer engagement to be a worthwhile marketing tactic.

However, consumers’ desire for privacy and control (and sometimes revenue) can cause problems for companies that exploit original content developed by consumers.

An article on consumer engagement in The New York Times explains how Crocs copied a photo from a mother’s Instagram post of a four-year-old girl wearing pink Crocs sandals and placed it on its website in a gallery of user-generated photographs without asking the mother’s permission.

The girl’s mother didn’t learn about the photo until contacted by a reporter through Instagram. “No one reached out to me,” Shereen Way told the Times. “I feel a little weirded out.”

Although Crocs says its policy is to post user generated content only after obtaining permission, it requested permission weeks after posting the image. Way did not respond to the request.

Unclear Boundaries

Reusing photos generally requires permission from the photographer, most likely the person who first posted the image. In some cases, permission from the photo subject may be required.

However, the exact boundaries remain unclear on how permission is to be obtained, who is responsible for policing user generated content, and penalties for crossing the line. It’s also not always clear if user generate content qualifies as advertising, which falls under stricter rules. Some marketers believe consumers give implied consent if they tag a company in their photos.

Instagram says it urges companies to contact its users to obtain explicit permission. The Children’s Online Privacy Protection Act (COPPA) requires website managers to obtain “verifiable parental consent” before collecting information from children under the age of 13. Not surprisingly, privacy issues are especially sensitive when children are involved.

Clear and Upfront

Marketers often request to reuse photos in a short informal comment under the photo. Social media experts recommend brands to be clear and upfront about how where and how they will reuse consumer content curated from social media networks.

As consumer advocates and privacy groups continue to raise concerns, social media networks are pursuing advertising more aggressively, often by mining their wealth of consumer data.

Many consumers enjoy seeing companies reuse their posts and have no privacy concerns. Many others remain indifferent or are resigned to a loss of privacy.

“From every angle, social media is anathema to privacy,” writes Theodore F. Claypoole, a partner at Womble Carlyle Sandridge & Rice LLP, for Business Law Today. “All of this sharing may help create communities, but it also destroys privacy.”

The FTC and state legislators are considering greater privacy protections, sometimes protecting social media participants from their own poor judgment, he says.

Key Questions

Marketing managers and legal teams must ask a few key questions about obtaining user-generated content permission, cautions Tint, which helps brands curate and display social media content.

The questions are:

• Will we profit from using this image? In other words, does this qualify as an advertisement?

• In using the content, are we violating the social media network’s terms of service?

While organizations need permission from the photographer to reuse a photo, exceptions may apply if the photo remains on the network and if the reused photo is not an advertisement, depending on the network’s terms of service agreements. Brands might be able to display user generated content on a company website if using a network API partner – as long the content does not become an advertisement.

Whether you need to get permission from the photographer and photo subjects depends on whether you are protected by the social network’s terms of service. The larger the potential monetary gain from the advertising campaign, the more careful a company will need to be about complying with copyright statutes and terms of service.

Bottom Line: While user generated content is now a viable marketing strategy, obtaining permission poses potential pitfalls. Brands that fail to obtain the consumer’s approval to repurpose their photos or videos may face a public backlash – and potential court action. Co-opting a consumer’s words or pictures as part of a marketing strategy is especially risky at this time since best practices are still evolving and consumer expectations differ. Wary marketing managers will work closely with their legal and PR teams to develop policies that protect the company’s reputation and legal position.