Web Hosting Services And Defamation Law
Generally, a hosting provider or a domain name, is not liable for defamatory content that is on the website or the domain name. However, web hosting providers can be liable for defamation in certain limited circumstances.
§230 of the Communication Decency Act of 1996 provides that; “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”
There are various cases where the court has found that §230 does not apply. For example, §230 does not expand or limit otherwise applicable trademark law. In the case of Hall v. Mindspring, where Gucci sued Mindspring, a web hosting provider to take down content the violated the Gucci trademark, and informed Mindspring that the website hosted by them violated the Gucci trademark on various instances and Mindspring did not take it down, the court found that Mindspring could be sued for assisting the website in violating the Gucci trademark.
This case is a prime example of how hosting providers can be found to be liable for something that is hosted on their network. If the web hosting company is informed about the violating content and consciously and knowingly refuses to take it down, then the web hosting company is not immune from suit merely because of §230 of the Communication Decency Act.
This presents a real concern for users and for web hosting providers. When is it that one knows that particular content on their networks violates someone’s copyright or trademark? Does one merely rule by exception, so to speak? This presents a responsibility on web hosting companies, to responsibly and reasonably police what is on their network and take violating content down. The line is a fine one, a web hosting company is under an inherent motive to take on more customers, even the rogue ones who violate copyright laws, and on the other hand assist and cooperate with people who are owners of trademarks.
The one sure way to avoid the likes of Gucci from going after your hosting company is to not purposefully avail of the laws and protections of the United States. That is, if the US courts do not have personal jurisdiction over the web hosting company, the US courts would be precluded from ordering the hosting company from taking infringing content down. This is an inherent principle from the due process clause of the 14th Amendment of the US Constitution, as applied to the States.
If you are a user who wants to use a website for such an infringing purpose the sure shot way is to find a non-US hosting company, and use a non-US domain name. The US courts do not generally exercise jurisdiction over non resident people, unless they have purposefully availed of the laws and protections of the US. (See the judgment of the US Supreme Court in International Shoe – http://en.wikipedia.org/wiki/International_Shoe_v._Washington ).
The problem with finding such a web hosting company (non-US) and a (non-US) domain name is that it tends to be more expensive. The US has great amount of competition between hosting companies, and lots of domain name providers. The industry is very highly competitive.