by Paul Alan Levy
The recent response by PhoenixNAP to a takedown demand from Kasim Reed, the mayor of Atlanta Georgia, showed its Internet customers that it cannot be counted on to stand up for their rights. Reed was unhappy that Lipstick Alley, a gossip site with particular traction among African-American women, carried an exchange of messages about Reed’s alleged relationships with several different women, including some of his cabinet. But instead of taking his complaints directly to Lipstick Alley, his lawyer sent a takedown notice directly to PhoenixNAP, threatening to hold Lipstick Alley and its hosting service liable for any “further republication” of the allegedly defamatory statements which, his lawyer claimed, would be “knowing publication of untrue statements.”
Unlike the recent case of hosting firm ServerBeach, which could point to a real possibility of liability for the hosting of copyrighted content on a customer blog as a justification for ensuring the removal of content claimed to violate the copyright laws, PhoenixNAP could be confident of total protection against liability for allegedly defamatory content under section 230 of the (otherwise unconstitutional) Communications Decency Act. As often discussed here, that federal statute is a crucial aspect of the system of online free speech, protecting the providers of online interactive computer services from being sued for content that others place using their facilities. Under section 230, an unhappy target of criticism has to sue the wrongful speaker, instead of exercising a heckler’s veto by suing online providers that cannot possibly judge who is right and who is wrong in a particular instance. (And this is not the first time that a McKenna Long lawyer who specializes in representing politicians has sent a demand letter on behalf of a Georgia politician that utterly ignored section 230).
Instead of blowing off the letter as patently contradicted by section 230, Phoenix NAP took the entire Lipstick Alley web site off line without any notice. In response to a strong protest, Phoenix NAP acknowledged that its failure to give notice was a mistake in process, but it had no sympathy for Lipstick Alley’s legal rights; PhoenixNAP told me that it takes claims of defamation seriously and, without regard to the merits of the dispute, its customers must “resolve the issue with the complaining party.” Indeed, PhoenixNAP was not at all disappointed to learn that Lipstick Alley felt it could no longer continue as a hosting customer, because, apparently, PhoenixNAP believes that web sites on which users can post comments generate too much trouble. The discretion accorded to hosting services to avoid certain kinds of web sites is the other side of the coin from the important protections that section 230 affords, but consumers should be aware of the limitations before they are induced to sign on as customers. PhoenixNAP might consider doing a better job of explaining its preferences; to its credit, it did offer to refund several months of Lipstick Alley’s hosting fees as compensation for taking the site offline without notice, and perhaps as well for making clear after the fact that a site like Lipstick Alley was not really welcome.
You would think that a hosting service like ServerBeach or PhoenixNAP would respond with hostility to complainants who take their demands straight to the hosting service instead of beginning with the web site where supposedly improper content is hosted. When the service responds directly, and especially when it responds by taking down the customer’s entire site, the service not only encourages others to impose on the service by complaining there instead of to the underlying site. The service also risks losing long-term customers who think that they ought to be given a bit more respect.
It is not only hosts of message boards or bloggers who allow comments who should worry about PhoenixNAP’s attitude about mere claims of bad content. With PhoenixNAP playing the role of super censor for any web site it hosts, whenever an unhappy target of criticism takes its complaints straight to the data center, no web site operator can be confident about using its hosting services for sites that discuss public issues or public figures in ways that those who can afford to hire lawyers to send threatening letters may not like. As I have had occasion to suggest about several hosting companies, such as Bluehost, GNAX, and Hostgator, PhoenixNAP strikes me as a bad bet for hosting any web site whose operators plans to offer or allow trenchant commentary.
In any event, Lipstick Alley has now taken its business to a new data center, and it has told Reed’s lawyer that his threats have served to strengthen its resolve to allow its users to keep their criticisms online.