This is a post about the tactics used to take down a New Zealand website hosted in the the USA and what they mean for the Internet. (Update post.)
Soon after the Christchurch quake, a website (christchurchquake.net) was published that said the quake was God's punishment for Christchurch's tolerance of homosexuality, with God being especially annoyed by Gay Ski Week. The website also made a number of other very odd claims concerning a conspiracy of "Phoenician-descended swamp lesbians" headed by Helen Clark that had taken over New Zealand.
The site is no longer available (Google cache here). This is because a number of people found the site highly offensive, and some of them decided that they would do what they could to get the site taken off the Internet.
The author of the site could not be identified so most action was aimed at getting Bluehost, a company based in the US state of Utah, to take it down. Two main tactics were employed:
- Complaining that the site was in breach of Bluehost's Terms of Service, particularly section 9.14 against obscene, defamatory, abusive or threatening language.
- Complaining that the site was breaching copyright by including photos that they didn't have permission to use.
Bluehost replied to the first set of complaints by saying that they would only take the site down in response to a court order. Whether they would accept a court order from New Zealand or would require it to be from a US or Utah based court was not obvious.
Apparently the second complaint was more successful. We have been told that Bluehost took the entire site down as it had infringed copyright by taking and using this picture without permission (image includes nudity).
Problems with these tactics
We are concerned with the use of these tactics to take down a website. While many people found the website to be very offensive and even classified it as hate speech (and therefore outside what they think of as allowable free speech), what does it mean about the Internet when a site can be removed this easily because some people disagree with the content?
Should these tactics be available? Would the people who had the site taken down be happy if the same tactics were used against websites that they agree with?
The "Terms of Service" tactic
This was an appeal to Bluehost to take the site down because the complainers said that the site didn't comply with the terms under which Bluehost offer service. It's worth noting that companies see terms of service as being for their benefit and not as a tool to be used against them. Bluehost refused to disable the site unless the complainants could produce a court order.
What would it have meant if the tactic had worked? Surely companies are allowed to decide which customers they will serve? What if dealing with complaints about the site are taking up too much staff time?
While everyone lauds the Internet for allowing anyone to exercise their right to freedom of expression, the reality is that to do so means getting some sort of service contract with a commercial company. Whether it's space on a webserver, use of a shared blogging service or even a connection for your own server, it will be subject to contractual terms imposed upon you by the provider.
We've already seen what happens when corporates turn against someone, with Mastercard, Visa and Paypal all deciding to stop processing donations for Wikileaks. Do we want companies to be deciding what we can and can't see on the Internet?
In New Zealand we already impose restrictions on the conditions that companies can include in their contracts. The Human Rights Act forbids them from discriminating against certain classes of people, while the Consumer Guarantees Act forbids them from opting out of consumer protection laws. To ensure that we all have access to the Internet do we need further conditions obliging them to offer service on the same terms to everybody?
At Tech Liberty we support the idea of ISPs having common carrier status. This gives the ISPs legal protection and means that they are not liable for the actions of their customers, but it also imposes a duty to offer service to all-comers on the same terms. This would mean that ISPs can't be forced to make difficult legal decisions about whether content breaches the law, nor will they be obliged to decide whether they find the content of websites acceptable or not. Freedom of expression will not be limited to whatever the public relations department doesn't find too scary.
At Tech Liberty we believe that we will all be better off if ISPs and webhosts stick to providing a service and leave decisions about censoring content to the courts.
The "breach of copyright" tactic
The tactic that persuaded Bluehost to take the site down was accusing the site of including copyright material without permission. In other words, an accusation of copyright infringement over a single image was used to suppress a website that the complainant disagreed with. How could this happen?
Under US (DMCA) and NZ law (s92c of the Copyright Act), the internet provider is liable for breach of copyright if they are told that one of their customers is hosting infringing material and they do not take action to remove it. Copyright law is complex (e.g. how much can you quote from an article?) and therefore they tend to err on the side of their own safety and remove the website immediately without giving the website's owner a chance to defend themselves. It truly is guilt and punishment upon accusation.
This ability to get material taken down, quickly and without argument, has naturally been abused by people who have other reasons to suppress information. For example, the Church of Scientology has used it to suppress criticism of the church. Google estimates that 37% of the requests it receives are bogus. We note that the US DMCA law has provisions for after the fact counter-notices and punishments for false accusations while the New Zealand copyright law does not.
We think that taking an entire website down based on it containing one possible infringement of copyright is a gross over-reaction. However, the laws are written so that it is the safest course for an internet provider to follow. (There are technical reasons why it may not be possible for the internet provider to block access to a single image. See our submission on NZ's proposed suppression law for more information.)
Furthermore, the idea that the website will be taken down upon accusation with no chance for the owner to defend themselves, is a gross abuse of due process. Once again, any accusations of this nature should be decided on by a court or tribunal, not a risk-averse corporation.
We fully understand that many people found the site in question to be highly offensive. We sympathise with their desire to get it taken off the Internet even if we may not agree with it.
However, we oppose the tactics that were used to take the site down and believe that they are inappropriate in a democratic society.
- We do not want a global Internet where corporations get to decide what can be published.
- We believe that internet providers are not the right people to make decisions about whether published material breaches the law or not.
- We think that "guilt upon accusation" is a terrible idea and an affront to our civil liberties.
- We support the idea that internet service providers should not be liable for the actions of their customers and that, in exchange, they should be obliged to offer service to all customers on an equal basis.
If published material breaks the law the correct place to determine this is through the justice system. This is the only acceptable option in a society that supports freedom of speech and the rule of law.
See our post updating this article.