Tech Liberty NZ Defending civil liberties in the digital age

Taking down websites you don’t agree with

Posted on February 28, 2011

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.)

The website

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 takedown

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.

Conclusion

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.

Posted by Thomas Beagle

Comments (17) Trackbacks (0)
  1. “I do not agree with what you have to say, but I’ll defend to the death your right to say it.” –Voltaire

  2. Sam said it first, Voltaire said it best. If we got rid of everything that was found distasteful by someone, there’d be very little left.

  3. \Do we want companies to be deciding what we can and can’t see on the Internet?\

    They already do. Your governments have blacklists, your ISPs have blacklists – all you’re seeing here are people attempting to do what large organisations and governmental bodies do on a daily basis.

    Your conclusions sound lovely, and wouldn’t it be marvelous if that was how the world worked, but it isn’t. It hasn’t ever been.

  4. No, it got pulled because of a ddos attack from 4chan. Bluehost were well within their rights to remove it if the attacks were affecting their hosting infrastructure. The owners can easily move to a new host anyway.

    • Hi Matt, interesting. Do you have any proof for that? We based our claim based on a communication from someone we know who claimed personal knowledge that it was the copyright breach. We’ll be happy to post a correction/clarification if necessary.

      Of course, I note that if we don’t want corporates deciding what can be published on the Internet, having the yahoos at 4chan decide would be even worse!

    • Another interesting wrinkle to the tactic, if what Matt says is true. You disagree with a site; you menion it in a few forums where it’s sure to spark outrage; it gets DDOSed by the outraged persons. ISP/host takes it down to preserve the intgrity of its network.

      That’s not censorship, is it?

      I don’t suppose it’s the first time it’s happened that way, either.

  5. They can take their hideous website to another host, then another, then another. I was impressed that threats of legal action have any effect in the wild west of the www.

  6. Bluehost did not decide what can be published on the Internet, they just decided what they were prepared to allow their service to be used for. Not, as it turns out, copyright infringement.

    • Copyright is a very big stick to wield.
      No ISP wants to wade into this area, and for good reason.
      Path of least resistance IMO

    • So, you’re happy that someone can accuse a website of copyright infringement and get the website taken down without any chance for the owner to defend themselves? (Because that’s what the DMCA calls for.)

      Do you think that ISPs are the right people to be able to tell whether something is in breach of copyright just from looking at it? (And ignoring the fact that “breach of copyright” is often very hard to determine.)

      Would you be saying these things if, for example, the Westboro Baptist Church had used this to get a website critical of what they did taken down because they had included a parody of the WBC’s logo?

  7. You sympathise with the desire to remove the site, but oppose the tactics?

    What other “tactics” are there?

    FYI, I find the term tactics a little over zealous. That implies some sort of strategy beyond a range of complaints.

    • I sympathise with their feelings on the matter (especially with the heightened emotions that everyone was experiencing from the terrible quake), I didn’t say I agreed with the decision they took to try and get the site taken down.

      A legally appropriate method would be to find a law that the site had broken and go to the court to get an injunction against it. For example, Helen Clark could have accused them of defamation.

      As for tactics/strategy, I did see people on Twitter and in comments on blogs (see Whaleoil’s site) discussing how to get the site taken down.

  8. I’m not sure how this equates to censorship. The hosting provider removed the content based on their terms of service. If the publisher of the material wanted to republish it there would be plenty of ways to do so, for example moving to another provider.

    Another point I’d make here is that this article is inflammitory, the article takes the events as happened and uses them to suggest that this could be considered censorship.

    As a basis for the definition of censorship – consider the following from Wikipedia.

    Censorship is suppression of speech or other communication which may be considered objectionable, harmful, sensitive, or inconvenient to the general body of people as determined by a government, media outlet, or other controlling body.

    In this case, the communication was considered objectionable to the general body of people by a percentage of the people themselves, not by the government or another controlling body.

    As the article states, we live in a democracy. If we had the method to instantly poll every citizen then I expect there would have been an overwhelming majority to consider the published material as offensive and not covered under free speech laws.

    At the end of the day free speech laws are not black and white, they are shades of grey and are interpreted that way by the majority of people.

    • Our article is about the idea that we shouldn’t be relying on private companies to decide what we can and can’t publish on the Internet.

      You say that they can just move to another ISP. And then another ISP, and another… at what point does this become de facto censorship purely because someone is expressing an unpopular view?

      ISPs are quick to say that they shouldn’t be responsible for people infringing copyright or breaching suppression orders through their service. We agree with that, but believe that they can’t have it both ways by saying “Hey, we’re not responsible” but then saying “But you have to take your site down because we don’t agree with it”.

      We believe that the appropriate model is the “common carrier” model, where ISPs aren’t responsible for the content but, as a quid pro quo, have to offer service on the same terms to everyone.

      Finally, in New Zealand we respect the rule of law, not the rule of the mob. Sometimes we need our laws and systems to control ourselves, as our emotions get ahead of our reason.

  9. Another word for ‘mob’ is majority. And if you were able to poll the entire of NZ, or even the world, you would find that the site was not only in poor taste – but also emotionally damaging for the people who lost loved ones in the disaster.

    We don’t allow movies into New Zealand public viewing without censorship by government controlled agencies, if a website appears as though it needs to be censored, I see no reason the site shouldn’t be taken down by whatever means necessary until such time as it can be reviewed by a government censor and decided upon by those we elect to power.

    Also, they can and should have it both ways. They have little to no control over what goes up in the first instance on their hosting services, to have someone eyeball every site that is created and every page on every site would be far too cumbersome. Therefore they have to have the caveat – They have ultimate power over what they will public, but can not be held responsible for material posted illegally.

    If they were notified of copyright material, and DIDN’T pull it down, then the copyrighter would be within their rights to file a case against the hoster.

  10. The offensive material is still there in cache – nothing is ever deleted on the Internet.

    Publicity is the oxygen of hate speech. Take down actions give oxygen, and reinforce a sense of persecution which leads to more hate speech.

    Blank them I say. They are looking for attention -withhold it.

  11. “The offensive material is still there in cache – nothing is ever deleted on the Internet.”

    True, however it’s not available to the immediate public, introduces a layer of complexity to accessing it.


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