Spineless Web Host Shutters Site Over Toothless Legal Threat Because Comments Are Too Much Trouble

from the bad-hosting-company dept

Wed, Oct 24th 2012 1:41pm — Mike Masnick

What is it with hosting companies who are quick on the trigger to take down entire sites in a kneejerk response to legal threats, going way, way beyond their legal obligations? We recently wrote about hosting firm ServerBeach taking down 1.5 million blogs over a single copyright claim (when to keep their DMCA safe harbors, they only needed to take down the one bit of content highlighted). Now another hosting company, PhoenixNAP, has done something even more ridiculous. In response to a takedown notice (pdf) sent by Atlanta mayor Kasim Reed's lawyers, PhoenixNAP took the entire gossip site LipstickAlley offline without any notice to the site owner.

Reed was arguing that comments on the site were defamatory, though it's telling that his lawyers went straight to the hosting company, rather than the site itself. Even so, PhoenixNAP was under absolutely no legal obligation to comply. Unlike the notice-and-takedown provisions of the DMCA, when it comes to defamation, hosting companies have even greater safe harbors under Section 230 of the CDA, which makes it clear that service providers are not liable for speech made by others. Period. They don't have to take down the content. If Reed wants to sue those who actually made the comments (which are Lipstick Alley users, rather than Lipstick Alley itself), that's his business, but PhoenixNAP is under no obligation to do anything.

Amazingly, even after being informed of this, PhoenixNAP stood by its decision (with the exception of noting that it should have informed Lipstick Alley's owner that it was cutting off the site). As noted by Public Citizen's Paul Levy:

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

These days, if you're hosting a website, you want a hosting company that will stand up for your rights, and recognize its own rights as well. This move by PhoenixNAP has made it clear that it doesn't stand up for its own customers, and it should raise alarms for anyone who hosts a website with PhoenixNAP. Apparently the company will shut you off if anyone complains, and it's your problem to deal with it. That's not a hosting company that I would want to work with. Furthermore, as Levy explains, actions like this only encourage more complaints to be sent their way:

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 for the complaints of defamation against Lipstick Alley itself, the site has made it clear to Reed's lawyers that it is also protected by Section 230 (pdf) and that the site "does not negotiate with bullies", such as those who send questionable takedown notices to web hosting companies rather than going to the appropriate parties.

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Filed Under: cease and desist, defamation, hosting, safe harbors, takedowns, threats
Companies: phoenixnap, serverbeach

31 Comments

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DannyB (profile), 24 Oct 2012 @ 1:53pm

As much as I hate lawsuits . . .
I hope the site sues. This madness has got to stop. At some point there must be some gigantic precedent that will put a gigantic stop to this nonsense.
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Zos (profile), 24 Oct 2012 @ 1:55pm

maybe they'd seen this
http://torrentfreak.com/torrent-site-webhost-ordered-to-pay-piracy-damages-121024/

"Hollywo od-backed anti-piracy outfit BREIN has won a landmark case against XS Networks, the former hosting provider of torrent site SumoTorrent. The Court of The Hague ruled that the provider is responsible for damages copyright holders suffered through the torrent site�s activities. The Dutch verdict has far-reaching implications for the liability of hosting providers for the conduct of their clients."
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Anonymous Coward, 24 Oct 2012 @ 2:04pm

Is there a way to find out what other sites are hosted on PheonixNAP? I would be interested in examining their content to see if it acceptable, or if there might be someone who objects.
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Anonymous Coward, 24 Oct 2012 @ 2:09pm

Re: As much as I hate lawsuits . . .
I expect that the terms of service for hosting companies allow it to be terminated. The problem is the threat of lawsuits against service providers who do not exercise control over content. Just as a phone company cannot be held responsible for conversations held on the network, hosting companies should have no responsibility for contents posted by users of the service, whether they provide virtual machines, or a blogging or other publishing platform. Until and unless this becomes law hosting companies can be bullied into taking down sites or content.
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Anonymous Coward, 24 Oct 2012 @ 2:10pm

Re: As much as I hate lawsuits . . .
Deus ex Machina?
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Lizzardborn, 24 Oct 2012 @ 2:12pm

I think that in this time and place this is less of a concern. Amazon EC2 and similar services are more than happy to provide the (relatively) cheap infrastructure to roll your own hosting. So if hosting providers don't want your money - they are welcome.
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gorehound (profile), 24 Oct 2012 @ 2:15pm

Re: As much as I hate lawsuits . . .
PhoenixNAP is now asleep !
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DH's Love Child (profile), 24 Oct 2012 @ 2:28pm

Re:
It's apples and oranges. That case was in the Netherlands and had to do with copyright. The one in this story dealt with defamation in the US. The US courts have held firm that the only people responsible for defamation are the people who actually make the comments, not the hosting companies.
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Anonymous Coward, 24 Oct 2012 @ 2:31pm

Wait a second. Somebody posted negative comments about a politician? Well I am shocked... Shocked!
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Applesauce, 24 Oct 2012 @ 2:37pm

Re:
Some unscrupulous person might be inclined to go through the list of all of PhoenixNAP's customers websites and find defamatory content. I suspect that if one looks really, really hard, it can be found on every website. A simple complaint will (one would expect) compel PhoenixNAP to shut down ALL their customers.
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Anonymous Coward, 24 Oct 2012 @ 2:41pm

Re: Re:
The way your legal system can be abused is the problem. Being in the right is no protection from large costs, or even bankruptcy, if the other person or corporation is prepared to use their money in a court battle.
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Anonymous Coward, 24 Oct 2012 @ 2:41pm

Re:
Pardon my ignorance, but how is this fundamentally different? Doesn't Amazon have some residual liability (at least at FUD level), and don't they retain the ability to pull your plug?

Incidentally I think there are several different levels of service/connectivity here that I don't understand very clearly.
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Milton Freewater, 24 Oct 2012 @ 3:07pm

Re:
"maybe they'd seen this http://torrentfreak.com/torrent-site-webhost-ordered-to-pay-piracy-damages-121024/"

That's a story about a Dutch ruling. Doesn't apply here - in fact, US law protected the hosting provider.

Understandable mistake, though. I appreciate TorrentFreak but they have a habit of writing global "sky is falling" headlines for regional stories.
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tracker1 (profile), 24 Oct 2012 @ 3:21pm

Re:
You may want to think about what you just said, and look into what happened with WikiLeaks... You aren't safer on Rackspace's cloud, or Amazon, Azure, Joyent etc...
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Rick Jones, 24 Oct 2012 @ 3:48pm

According to the LiveChat the only thing they don't like hosting is CDN & mail spamming (right)

according to them
"Mathew Shaffer
I spoke with my supervisor and we dont take down servers for blogging and for people who have opinions"
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Anonymous Coward, 24 Oct 2012 @ 4:17pm

Re: Re: As much as I hate lawsuits . . .
Removing hindrances (as you suggest) might not be enough. It might take a requirement that they *cannot* deny service, like a common carrier. Otherwise they could still refuse service if there was something about you that made you an inconvenient customer.

Even a common carrier can refuse service to a customer who doesn't pay or for some other compelling reason. If the law were rewritten, what kind of reason should be good enough for an ISP to deny service?
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Zos (profile), 24 Oct 2012 @ 5:20pm

Re: Re:
my comment was at least 50% snark.
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out_of_the_blue, 24 Oct 2012 @ 5:22pm

In addition to other flaws, corporations are also stupid.
That's the short answer to: "What is it with hosting companies who are quick on the trigger to take down entire sites in a kneejerk response to legal threats, going way, way beyond their legal obligations?"

But may be only typical calculation of losing one customer versus expensive legal tangles (especially with a politically powerful adversary).

However, a better question is: "What is it with Mike Masnick always thinking that amoral corporations are going to act for any other motive than short-term profit?" -- If only you'd gone to the School Of Hard Knocks rather than the Party Hearty Day-care Center.
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Anonymous Coward, 24 Oct 2012 @ 5:28pm

Re: Re: Re:
That isn't just 'our' legal system. Look at the French, Dutch and German courts... just for a tiny, tiny sample of the entire world. Being in the right isn't protection from being ruled against.
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That Anonymous Coward (profile), 24 Oct 2012 @ 5:55pm

Kasim Reed can't hire lawyers who know the law, is that who you want running your city?
Kasim Reed has a very thin skin and seeks to retaliate against people wasting money, is that who you want running your city?
Kasim Reed is a moron who does not understand the Streisand effect, is that who you want running your city?
Kasim Reed uses underhanded tactics to repair bruised ego, is that who you want running your city?
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Anonymous Coward, 24 Oct 2012 @ 6:15pm

Re: In addition to other flaws, corporations are also stupid.
Can some bright cove dig up the article where Mike called this ass hat out for being a douche so we can see why he hates Mike so?
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Anonymous Coward, 24 Oct 2012 @ 8:00pm

Seems like the company did what it felt was in its best interest. The truth is about .1% of people will stand on principle and the other 99.9% will roll over like a happy puppy. It's easy to condemn if you've never had your nuts in a vise, which I suspect is the case with the author of the article and all of those reviling the company.
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Anonymous Coward, 25 Oct 2012 @ 2:28am

Re: Re: Re: Re:
The cost of litigation has to be paid for, and it is possible to win a case and still end up bankrupted. This gives advantage to the richest party especially if there is no guarantee of recovering costs. The first calculation of any threatened party has to be can i/we afford to fight this. This can make the threat of a lawsuit an effective tool for gaining a desired result It is easier to recover costs in most European countries than it is in the USA..
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Anonymous Coward, 25 Oct 2012 @ 3:24am

Re:
That's what reputation is for.
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Anonymous Coward, 25 Oct 2012 @ 5:49am

Re:
Before today I didn't even know who Atlanta Mayor Kasim Reed was. Now, I don't know if this is true, but I have heard allegations that Atlanta Mayor Kasim Reed is sleeping with 4 chicks in his cabinet and they all think Atlanta Mayor Kasim Reed is going to wife them and Atlanta Mayor Kasim Reed has them trained like a pimp and Atlanta Mayor Kasim Reed requires girl on girl action and Atlanta Mayor Kasim Reed is a freak.
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ChrisB (profile), 25 Oct 2012 @ 6:51am

Re: In addition to other flaws, corporations are also stupid.
We get it. You watched "The Corporation", and you are outraged at the Citizens United ruling.
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Dirkmaster (profile), 25 Oct 2012 @ 9:25am

Re: Re: As much as I hate lawsuits . . .
Then the solution is clear. Send a take down notice for each and every website hosted by PhoenixNAP. Then they can either take them all down, and thus bankrupt themselves, or be sued for not treating all websites the same consistently. I'm willing to bet that no matter WHAT their TOS says, it doesn't give them an out for treating some differently than others.
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Dirkmaster (profile), 25 Oct 2012 @ 9:30am

Re: Re:
I wasn't liking him before, but now, he's kind of a stud.
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John Fenderson (profile), 25 Oct 2012 @ 12:31pm

Re:
But then Amazon is your hosting provider. You haven't escaped the issue, you've just changed providers.
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John Fenderson (profile), 25 Oct 2012 @ 12:35pm

Re:
I have personally seen people stand on principle when it hurts them to do so enough to know your percentages are not just wrong, but wildly wrong.

It's easy to condemn if you've never had your nuts in a vise, which I suspect is the case with the author of the article and all of those reviling the company.

True, but it's also easy to condemn when you have had your nuts in a vise. As I have, more than once. And I condemn this web host. Easily.
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RayB (profile), 14 Apr 2013 @ 2:28pm

Re: PhoenixNAP listed ip addresses
whois states that PhoenixNAP owns this ip address range

199.201.106.0 - 199.201.107.255

I am sure some, but not all of their customer's website would be in that address range.
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