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.
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:
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.
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.
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.
It is an offence for a person to:
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:
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:
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.
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