User Generated Content and the Law

The study of law is very intriguing, for someone like me who came to it via the back route. Since I work in a law firm library, and haven’t been to law school, I am very aware of my limitations when it comes to legal research. I like to think that makes me more observant and diligent. One of the things I’ve observed is the way the law overlaps. A few years ago, I was helping an associate sort out where he’d find the answers to a question involving dangerous driving. He ended up needing three separate pieces of legislation: The Highway Traffic Act to define the offence; The Summary Convictions Act to determine the penalty; and a regulation under The Manitoba Public Insurance Act to figure out the fine and demerits on the driver’s license. (As an aside, the legislation database on CanLII was a great help, being the only free database able to search both statutes and regulations at the same time.)

An issue where this overlap is very obvious is with user generated content (UGC). I came across this well researched paper, User Generated Content: Recent Developments in Canada and the US by Len Glickman and Jessica Fingerhut of Cassels Brock & Blackwell LLP. It explores all the different areas of law potentially affected. Aside from the obvious-to-me (copyright), there’s defamation, trade-mark, privacy, advertising issues, employment, and the use of this content in litigation. UGC comes in the form of blogs, tweets, Facebook entries, videos, forums, comments on other people’s sites – far more areas than I realized. And every day seems to bring new issues for the courts to decide on, like how you can use someone’s Facebook pages to whose duty it is to inform clients that their data is being saved on photocopiers.

It seems to me that UGC could be considered a metaphor for the rapid way technology has taken over the law.

Why bring up UGC? As a blogger, I am well aware of these concerns, especially from a legal perspective. I helped launch a firm-wide blog at my last firm, and learned first hand all the reasons why lawyers should NOT be blogging. I was also intrigued by this post from Kevin O’Keefe, “Law Professor’s blog causes federal judge to revisit decision”. The work that some people are publishing in blogs is as relevant as an authoritative treatise, and is published so much faster.

Of course, not all blogs are created equal. One way to help readers determine authority in blog postings would be to index them. Simon Fodden recently asked for Slaw to be included in the Index of Canadian Legal Literature (ICLL). I am a big fan of the ICLL, and appreciate the authority of its content when I’m looking for secondary sources. However, I wonder if it’s necessary for selected Slaw content (or indeed, other great blogs like to be indexed in this type of a source? The main reason for indexing is to help users find relevant content on a specific subject. But through search engines, all of Slaw’s content is readily available to anyone. The other aspect, as I already mentioned, is the selection process itself. An editor has reviewed the content and determined what it is about, and that it is important enough that a researcher might find it useful. When you have a choice of a million results on Google, or five in ICLL, obviously you’re going to review the ICLL results first.

This is a rapidly changing area of law – it will be interesting to see where it goes.

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