from the bad-hosting-company dept
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 preferencesThese 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.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.
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.