Copyright Law

Will Your ISP Stand Up for Your Free Speech Rights?

By David Ardia

There are a lot of things to consider when making the decision to launch a blog or website, including questions of cost, ease of use, and ownership of content.  Understanding how these considerations impact your legal rights and potential liability can help you make an intelligent choice as to what platform to use and what precautions to take when you speak online (we've got a whole section on these concerns, and others, in our legal guide).  But one area most people tend to overlook is whether their prospective ISP or hosting provider values -- and is willing to stand up for -- free speech rights.  

In a fascinating post on Public Citizen's Consumer Law & Policy Blog, Paul Alan Levy recounts a disturbing series of events that led to the repeated takedown of Ronald Riley's "gripe site" about the infamous "cyberlawyer" John Dozier, www.cybertriallawyer-sucks.com.  Paul's cautionary tale highlights the importance of assessing -- before you are embroiled in a legal dispute -- whether your ISP or hosting provider will stand up for your free speech rights. 

On September 4, 2008, John Dozier filed a lawsuit in Virginia state court claiming that Riley's website violates his law firm's trademark because it uses the firm's name in conjunction with an embedded link that goes, not to the firm's website, but to a page on inventored.org that lists cease-and-desist letters Riley has received from Dozier and Riley's responses to those letters. According to Levy, Dozier "does not seem to have served [the complaint] on Riley.  Instead, he has used the making of a claim for trademark infringement to warn the hosts of Riley?s web site that if they do not take the web site down they risk a further display of Dozier?s wrath, directed at them." 

Unfortunately, Dozier's bullying had the desired effect of driving Riley's site offline.   As Levy reports,

when [Riley's] ISP A Small Orange refused to take immediate action because it wanted some proof, Dozier went over the ISP?s head directly to the ISP?s data center, Global Net Access or "GNAX." He made clear that although he was making a trademark claim, his real concern was with the fact that Riley?s ?sucks? page had achieved the third position in organic Google search results.   Without demanding any proof, or giving Riley a chance to reply, GNAX told A Small Orange that unless it cut off Riley immediately it was going to pull all of A Small Orange?s clients web sites down.  It is not clear why GNAX acted so precipitously, but that point A Small Orange took down Riley?s web site. 

When Riley moved his site to a new host,  pSek LLC, Dozier threatened pSek that it could be liable for ?contributory infringement? if it did not take Riley down immediately; he also threatened to go to one of pSek?s biggest customers to complain.  pSek tried to remonstrate with Dozier, but he refused to engage in any discussion, but repeated his threats against pSek?s other clients.  Recognizing that for a small ISP without any lawyer on staff, it costs money just to talk to an outside counsel, Dozier cynically played on this cost factor by repeatedly warning that pSek must have its lawyer contact Dozier or face the consequences.  Threatened with the possibility of action against its other clients (who produce greater revenue than Riley, presumably), pSek chose its other customers over Riley, and told Riley to take his business elsewhere.

And after Riley posted his web site through the ISP Hostgator, presumably after receiving similar threats from Dozier, Hostgator shut down Riley?s web site without any notice. 

Although Riley?s site is back up thanks to hosting provider Ctyme, his story reveals the critical role that intermediaries play in ensuring that the Internet remains an open platform for speech, especially controversial and unpopular speech.  Private website operators, ISPs, and hosting services are not constrained by the First Amendment's speech guarantees and therefore can limit what kind of speech appears on their sites and servers.

This discretionary power may threaten your ability to publish certain types of content online, especially if you are making a controversial point or are criticizing others. As Riley's travails demonstrate, offended parties may pressure your hosting service or ISP to remove material they consider unlawful or simply do not like. Many web hosts will remove content or cancel your account if they receive a complaint or deem your site to be offensive, assuming their terms of service permit them to do so (check our legal guide for help on evaluating terms of service).

Regardless of their public stance on free speech issues, ISPs, hosting services, and websites that allow users to create or submit content enjoy immunity in the United States when it comes to claims of defamation, privacy, and other similar torts based on the activities of their users. This means that hosting services and website operators do not have to remove content just because someone complains about it, and they are protected from liability even when they are on notice of the potential defamatory character of the statements. For more information on this law, see our primer on the Communications Decency Act ("CDA 230").  Note that CDA 230 does not cover trademark and other intellectual property claims, a limitation that Dozier has used to his advantage when threatening hosting providers with litigation.

Unfortunately, many hosting services and website operators are not aware of CDA 230's protections. You may need to remind your hosting service of CDA 230 if they claim they must remove your material. Keep in mind, however, that your hosting service likely has the contractual right to remove your material regardless of their exposure to liability, depending on what their terms of use say.

If your content might be controversial, you should think about what sort of platform or service will protect your speech most strongly. You have perhaps the least amount of protection when posting on someone else's blog or message board, as a moderator can generally remove any post at any time. Starting your own blog gives you more room to operate, but blog-hosting sites generally impose some restrictions on the content that you can post. If you are planning to start a blog, you should carefully consult each hosting provider's terms & conditions to see which host is the most protective of free speech. The section of our legal guide that provides advice on selecting a blog or website host should be helpful.

You are likely to have more freedom if you start your own website. But again, your choice of ISP or host can make a big difference.  Unfortunately, when faced with a legal threat, many hosting sites will sacrifice your freedom of speech and send you looking for a new home on the Internet.  If you know that you will be covering a controversial subject or expressing a controversial opinion, you may want to consider one of the hosts that make an explicit effort to respect free speech rights. Computer Tyme and Project DoD are two examples of web hosts that make it a point to protect free speech. You can find other examples of web hosts that are proud of their free speech stance on the Dedicated Hosting Guide's "Free Speech Hosting: 11 Web Hosts That Won?t Dump You at the First Sign of Controversy."

If you know of other ISPs or hosting providers that make it a point to stand up for the free speech rights of their clients or, conversely, those that don't, please let us know in the comments.

Full post as published by Citizen Media Law Project on October 09, 2008 (boomark / email).