A recent decision by Ofcom highlights the issue of exactly how user generated content is regulated and, perhaps more importantly, the risks faced by those seeking to exploit such content for commercial purposes.

The decision (available by clicking here) related to the broadcaster Sumo TV, the broadcast arm of a website called Sumo.tv. Contributors can submit material via the website which may end up on the digital television channel. In this instance two clips were complained about by members of the public. One involved the performance of a rap song containing very strong language and graphic sexual references which was performed by a person who appeared to be an adolescent. The other appeared to be a mobile phone video of an adult frightening a young child (who appeared to be approximately five years old) to the point where the child was clearly extremely distressed.

In this instance Ofcom decided the broadcasts were in breach of certain provisions of the Broadcasting Code. In their decision they stated:

"The Code was drawn up by Ofcom to secure the standards objectives set out in section 319 of the Communications Act. These standards apply to all broadcast material whatever its origination: whether material is user-generated content or derived from more traditional sources. Broadcasters should therefore apply the code equally and in the same way to all material broadcast on its licensed television and radio services, including material originating as user-generated content."

It was acknowledged that whilst broadcasters may have no direct control over the making of such content, they are still expected to comply with the appropriate Rules if it is then broadcast on a licensed service. This seems to suggest that Sumo would need to exercise far greater control over material broadcast on their digital television service than that viewed on the website. Sumo attempted to pass responsibility for complying with the Code to users submitting such material. Ofcom said such a compliance approach to clearing material for broadcast was “wholly inadequate”.

So TV companies don't have to ensure user generated content complies with the Code unless they broadcast it on a licensed platform. What is the situation for other content providers? The situation with newspapers is that since last year the Press Complaints Commission ("PCC") extended their remit to include editorial audio-visual content published by newspapers on their websites. August 2007 saw the PCC's first ruling on video content published online by a newspaper when the Hamilton Advertiser was found to have breached school children’s right to privacy by hosting a video of an unruly classroom filmed by a pupil on her mobile phone – user generated content.

Perhaps the crucial word in the case of the PCC is "editorial" content. Does this mean that user generated photographs or film clips submitted randomly are not protected, but those which illustrate a particular article will be? Ofcom and the PCC are not the only ones concerned with online content. It was reported by the Guardian on February 18 2008 that media companies including the BBC, Channel 4, Google, Yahoo and Bebo had all signed up to a new code of conduct (described as Good Practice Principles) drawn up by the government’s independent advisory body the Broadband Stakeholder Group, backed by Ofcom.

So what are these guidelines about? They are designed to give parents more information about the suitability (for children) of audiovisual content available online and on mobile phones. It seems old systems such as the 9pm watershed don’t work online. Interestingly, under "parameters", the Principles state:

"These principles apply to audiovisual content that is 'commercially produced or acquired'. This means that they do not apply to user-generated content, to which a different set of tools apply to manage potentially harmful or offensive content".

So what about if the user generated content is ordered and indexed in a manner meaning people will visit a site to see material of a certain kind. The website may then start to generate advertising income if the traffic is sufficient. At what point will the content exploited then be commercially acquired? Perhaps time will tell. The Principles can be viewed at here.

Of course, one mustn’t forget all the other legal provisions which might affect the commercial exploitation of user generated content. And surely the majority of user generated content online is hosted by someone with the aim of making money if possible.