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User-generated content in games adverts

It is becoming increasingly common for games platforms to have User Generated Content (UGC) systems integrated into the game itself, and to allow users to post UGC in chat forums or pin adverts to the platform.

March 2019

What is user-generated content?

User Generated Content (UGC) includes any form of content, for example, images, videos, text and audio, that is posted by users on online platforms, such as social media or forum functions.

Who is liable for UGC?

The legal position of an individual who posts content on a games platform (including, for example, a website) is clear: they are responsible for it. The situation is more complicated when it comes to a games business whose website publishes UGC. Provided an operator:

  • is unaware of the infringing or illegal content
  • has an effective notice and take down procedure in relation to such content (under which it promptly removes infringing or illegal content from the site once on notice of it)

it can probably rely on what are known as 'safe harbour' provisions available to 'information society services' under EU legislation, without the need to monitor users’ posts. These 'safe harbour' provisions include what is commonly known as the hosting exemption under the Electronic Commerce Regulations 2002 (Regulations). The hosting exemption limits the liability of providers of 'information society services' where such services consist of the 'storage of information' provided by a recipient of the services.

Moderating UGC

From a legal point of view, a decision to moderate UGC 'lightly' is likely to be the worst option. The hosting exemption is unlikely to apply and the website operator may be held responsible for the UGC over which it has no real control. If effective procedures are put in place to remove illegal content as soon as it comes to the website operator’s attention, the decision not to moderate is often the better option.

Case study: UGC gambling adverts hosted on a games platform

The hosting of UGC adverts that link to third party eGaming sites (that are not licensed in the UK by the Gambling Commission) may constitute the commission of offence(s) by a website operator under the Gambling Act 2005 (GA). We focus below on the hosting of UGC gambling adverts that are pinned to a gaming platform by users.

Relevant offences

It is an offence for a person to:

  • advertise "unlawful gambling" (section 330(1), GA); gambling is "unlawful" if, in order for it to take place as advertised without the commission of an offence under the GA, it is or may be necessary to rely on a licence or exception under the GA
  • invite another person under 18 years of age to gamble (section 46, GA).

advertising "unlawful gambling" (section 330(1) GA)

There is a defence under section 330(6) GA, which states that a person does not commit an offence under section 330(1) GA by reason only of delivering, transmitting or broadcasting a communication or making data available if:

  • They act in the course of a business of delivering, transmitting or broadcasting communications (in whatever form or by whatever means) or making data available.
  • The nature of the business is such that persons undertaking it have no control over the nature or content of the communications or data.

The principle under this defence is similar to the hosting exemption under EU legislation, but could offer an additional overlay of protection for a games website operator in these circumstances. In addition, this defence is to be considered separately in relation to section 46 GA (discussed below).

However, given the specificity of the defence under section 330(6) GA (and that the principle and spirit behind the defence is similar to the hosting exemption, and also doesn’t include a notice/take down procedure), we are of the view that section 330(6) GA may well be a stronger defence to rely on, depending on the factual circumstances.

As there is no guidance/case law available on the application of the section 330(6) GA defence, a common sense approach should be adopted. Aggravating or mitigating factors we think would be similar to those behind the hosting exemption are:

Aggravating factors:

  • A high degree of prominence and permanence of the adverts, making it more difficult to argue the lack of control on the part of the website operator.
  • The website operator provides formatting/design services or in any way facilitates the presentation/functionality of the adverts which could illustrate a level of control.
  • Receiving remuneration via clicks on the relevant advert post.
  • Repeated pinning of adverts.
  • Ignoring any requests for take down of adverts/not acting promptly.
  • If in any way it appears that the website operator is approving the adverts.
  • If the website operator in any way moderates the UGC.

Mitigating factors:

  • The website operator makes it clear in its terms that users are not allowed to post links to unlawful adverts.
  • It is clear on the site that the content has been pinned by users and that it is third party hosted content.
  • The website operator does not receive any remuneration via clicks on the relevant advert post.
  • The website operator promptly responds to complaints/take down requests in relation to the relevant advert.
  • The website operator does not moderate any of the content/adverts.
  • The website operator does not participate in and has no control over the content of the post or user.

Inviting another person under 18 years of age to gamble (section 46, GA)

Clearly a user posting the gambling advert may be committing this offence. However, whether a website operator would be held liable would depend on the content in question, the particular circumstances of the case and the interpretation of section 46 GA.

There are no defences to this offence set out in section 46 GA. However, we are of the view that the hosting exemption could apply if a website operator were found liable. The Regulations do not apply to various activities of “information society services”, including "betting, gambling or lotteries which involve wagering a stake with monetary value".

We consider that this does not expressly rule out that the Regulations (and hosting exemption) will apply to a games platform that hosts UGC gambling adverts (provided that the activities available on the platform itself do not involve gambling).

If the website operator’s activity falls within the scope of the Regulations (and the criteria set out under the hosting exemption), then, as a result, it may be able to rely on the exemption.

If you have any questions on this article please contact us.

user-generated content
Anjali Chandarana

Anjali Chandarana


Anjali looks at the impact of new CAP rules on UGC gambling adverts on games platforms.

"From a legal point of view, a decision to moderate UGC 'lightly' is likely to be the worst option."