Forum Moderators: phranque
I run a forum in a niche industry and many of the posts are complaints about companies in the industry.
The site is currently hosted on servers in the UK.
I have just been shut down, under court order, until some offending material is removed. My hosts are OK with this and know that I am not allowing this maliciously.
I clearly state on the site T & C that if anyone finds anything that they are not happy with they can conatct me direct, but this time they didn't, they just went for court.
Is it true that if your site is hosted in the US, you have a much better chance of not being closed off?
Or does anyone else have any ideas?
I have read so many pages/sites about this and I am very confused.
Thanks
There have been a few cases of the law being perverted to use the DMCA for libel cases, but they are few and far between. For example, the Church of Scientology has tried to use the DMCA to shut-down sites that criticize them, claiming copyright violations on material posted that originated within the church. (The sites claim fair use/criticism.)
But, in general, cases involving libel would slowly work their way through the court system, and you would have ample opportunity to respond and appear in court. (Spending plenty in the process, but that's beside the point...) I don't think there's any way that somebody could get your site shut-down without a proper court hearing that you are allowed to participate in.
Just my observations as a U.S. citizen whose observed the legal system in action.
You'd best talk to your attorney about whether simply hosting your site in the U.S. shields you from British laws, however.
I would host in the US; the UK court order means absolutely nothing there. The only risk to you is if you are in the UK, as they may well coem for you personally, or if they then block your site at the LIE (London Internet Exchange) as they are theoretically able.
US Law prevents web site providers being prosecuted for contributions on their site
Telecommunications Act of 1996, I believe. (Which preceded the DMCA by a couple of years.) Sometimes referred-to as "common-carrier status". The protective principals of the Act were further reinforced in the DMCA ("safe-harbor provision").
But that's not really the point I was trying to make.
Even if the plaintiff had a valid point of law, U.S. court procedures wouldn't allow an order to remove the material (in most cases) without a trial and verdict, and, in any case, without at least a court hearing where the defendant would be allowed to appear before the court.
The DMCA is a very different beast. IMO (as a non-lawyer) it's unconstitutional. And certainly not in the spirit of American law, in any case. Anybody can complain directly to an ISP, claiming that their copyright has been infringed, and the ISP has to arrange for the removal of the material (at least temporarily), without proof. No court involvement needed whatsoever!
It really flies in the face of the basic principal of "innocent until proven guilty" that we (those of use above a certain age, anyway) were brought up to believe in.
Thanks so much to WIPO. :(
Again, IMO, the approval of that treaty was unconstitutional, and will eventually be found as such.
I am the publisher no? Therefore I can be sued?
Thanks the for replies so far though.
I am the publisher no? Therefore I can be sued
No.
It's the author who'd have to be sued. The publisher has no responsibility, beyond removing the offending material if it is ultimately found libelous.
That said, in the U.S., anybody can sue anybody for pretty-much anything. The court can sanction for filing frivolous lawsuits, but there isn't much that be done to prevent their being filed and running-up significant costs in defense.
Somebody drops a packet of papers on a desk, pays a small fee, and the clock starts ticking while the meter's running.
I also think there is some unsettled law in this area yet, as from time to time there is a high-profile case where somebody tries to find a publisher responsible. Not that they tend to get very far with the argument.
In any case, U.S. libel laws are very different than British ones. It's much harder to prove in the U.S., even if you are the author.
But in the industry I am in, the people who are empowered in cleaning up the image of the industry are run by the people that create the bad image, so instead of cleaning up, they try and quash the people like myself that publicise the wrong doings for the the benefit of the public.
Crazy, I know, but nothing I can really do about it except try and continue what I do to educate jo public.
