chatterbox
New member
Can a web host be sued over illegal content that is on one of the sites they host? I'm wondering what level of liability there is should you find yourself hosting a scammer or criminal activity.
Are web hosts liable for sites hosted?
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chatterbox
New member
Okay, another question in the same vein - when a host receives a complaint, do they HAVE to shut the site down or can they investigate first? I've heard horror stories of some hosts just shutting down a site without even seeing if the allegations are true, providing an easy way for the less scrupulous to get rid of the competition.
It depends on the nature of the complaint, and the web host's policies in dealing with complaints.
Example of how I handle copyright complaints: When someone complains of one of my clients' copyright violations, they have to provide all information stipulated by the DMCA: they have to provide exact file names that are violating copyright, they can't just say "an entire site" is violating copyright. They also have to state that they (the complainer) are either the legal copyright holder, or are a representative for the legal copyright holder. (There are some other things they need to provide.)
Once that complaint is received, I notify the account owner, tell them that I'm going to temporarily remove certain files from their webspace because of a complaint, tell them which files are being removed, and why. The client then can respond to the person who filed the complaint stating that the files were not violating copyrights. Once they do that, they then either leave those files taken down or ask that they be restored after 14 days have elapsed from the date of the original complaint. If they ask for the files to be restored and have replied that they do not believe that the files in question violate copyright, those files are restored to a customer's webspace. Then, if the complaintant believes that the files *do* violate copyrights, they can then proceed with legal action against the account holder - whose contact information they will now have, from the rebuttal notice the client filed. Any further legal action is solely between the client and the complaintant, at that point.
If the client just leaves the files down and does not file a rebuttal notice...then those files are deleted from the "holding area" after 14 days, and the complaintant goes on their merry.
There are all kinds of other things that might happen: a client could re-upload the files, or upload them under new names. Since client content isn't monitored, if the copyright holder catches them displaying the copyrighted material without a rebuttal notice being sent, they can file a follow-up complaint. If this happens too many times, the client may be suspended or terminated (after we try speaking with them to figure out if they just don't understand the process, or if they're just scoffing at the received complaints.) A complaintant could file multiple complaints against the same "infringing" files, even after the client has filed their rebuttal notice. This hasn't happened; but if it does, I'll speak with a lawyer about my options in ignoring repeated complaints from the individual. And so on, and so forth.
That's just an example of how copyright complaints may be handled. Termination is never the first step unless the client has been installing and running scripts that compromise server or network security - and even then, suspension is preferred before complete termination, and shutting down the offending scripts is the preferred action before suspension. There are clearly defined escalations in dealing with problems, whether client-generated or external complaints; but none of them start with suspension, let alone termination. They all take into account keeping us from being held legally liable from our clients' actions, but at the same time give people a way to lodge honest complaints against our clients. They just won't be able to win a lawsuit against TLM Network for the content of our members' sites.
If a web host makes it easy for people to lodge complaints against their clients; if a web host does police egregious network abuses so that their servers don't generate more spam or host warez sites; if a web host is a "good neighbor" rather than a nanny; it won't be simple for someone to prove willful negligence or abetting lawbreaking activities. No guarantees, of course. But you'll make their work pretty dang difficult.
Example of how I handle copyright complaints: When someone complains of one of my clients' copyright violations, they have to provide all information stipulated by the DMCA: they have to provide exact file names that are violating copyright, they can't just say "an entire site" is violating copyright. They also have to state that they (the complainer) are either the legal copyright holder, or are a representative for the legal copyright holder. (There are some other things they need to provide.)
Once that complaint is received, I notify the account owner, tell them that I'm going to temporarily remove certain files from their webspace because of a complaint, tell them which files are being removed, and why. The client then can respond to the person who filed the complaint stating that the files were not violating copyrights. Once they do that, they then either leave those files taken down or ask that they be restored after 14 days have elapsed from the date of the original complaint. If they ask for the files to be restored and have replied that they do not believe that the files in question violate copyright, those files are restored to a customer's webspace. Then, if the complaintant believes that the files *do* violate copyrights, they can then proceed with legal action against the account holder - whose contact information they will now have, from the rebuttal notice the client filed. Any further legal action is solely between the client and the complaintant, at that point.
If the client just leaves the files down and does not file a rebuttal notice...then those files are deleted from the "holding area" after 14 days, and the complaintant goes on their merry.
There are all kinds of other things that might happen: a client could re-upload the files, or upload them under new names. Since client content isn't monitored, if the copyright holder catches them displaying the copyrighted material without a rebuttal notice being sent, they can file a follow-up complaint. If this happens too many times, the client may be suspended or terminated (after we try speaking with them to figure out if they just don't understand the process, or if they're just scoffing at the received complaints.) A complaintant could file multiple complaints against the same "infringing" files, even after the client has filed their rebuttal notice. This hasn't happened; but if it does, I'll speak with a lawyer about my options in ignoring repeated complaints from the individual. And so on, and so forth.
That's just an example of how copyright complaints may be handled. Termination is never the first step unless the client has been installing and running scripts that compromise server or network security - and even then, suspension is preferred before complete termination, and shutting down the offending scripts is the preferred action before suspension. There are clearly defined escalations in dealing with problems, whether client-generated or external complaints; but none of them start with suspension, let alone termination. They all take into account keeping us from being held legally liable from our clients' actions, but at the same time give people a way to lodge honest complaints against our clients. They just won't be able to win a lawsuit against TLM Network for the content of our members' sites.
If a web host makes it easy for people to lodge complaints against their clients; if a web host does police egregious network abuses so that their servers don't generate more spam or host warez sites; if a web host is a "good neighbor" rather than a nanny; it won't be simple for someone to prove willful negligence or abetting lawbreaking activities. No guarantees, of course. But you'll make their work pretty dang difficult.
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chatterbox
New member
Lesli, that is one of the most informative and professional posts I have seen here. I really like what you are saying with the complaint and rebuttal system - that sounds like it would work very well for copyright situations.
ldcdc, that is correct. The DMCA does not apply to non-US-based servers/companies. However, the Berne copyright convention does apply to most countries, as do other jurisdiction-specific copyright laws. The above practice can be easily adapted to handle just about any complaint, from copyright to complaints of hosting porn, to hatespeech, to what-have-you. It's a general outline that lets the host respond to complaints without shutting down an entire account, and / or without giving someone the ability to complain just to get a competing site off the web.
Thanks, chatterbox!
That system is actually the one outlined by the DMCA's Safe Harbor clause - it tells web hosts what they must do in order to avoid being liable for their clients' copyright violations. It's a good general practice, though, for just about any sort of complaint: receive a complaint, temporarily block or remove only the offending material, give the accused a chance to respond to the complaint, if the complainer does not follow up in a timely fashion and decide to take legal steps against the person responsible for posting the offensive materials, restore the material in question (assuming said material doesn't obviously violate the host's TOS - ie, scripts to generate spam, hosting hardcore porn or warez, anything that compromises server or network security.) It's far better than shutting down an entire account, and also far better than trying to police every bit of user-posted content.
Working in the corporate world had its pluses - one of which was going through ISO 9000 certification and sitting in on (endless, snooze-inducing) meetings where all of these procedures were discussed and worked out. I learned a lot...even if sometimes I had to drink a *lot* of coffee to stay awake
Thanks, chatterbox!
That system is actually the one outlined by the DMCA's Safe Harbor clause - it tells web hosts what they must do in order to avoid being liable for their clients' copyright violations. It's a good general practice, though, for just about any sort of complaint: receive a complaint, temporarily block or remove only the offending material, give the accused a chance to respond to the complaint, if the complainer does not follow up in a timely fashion and decide to take legal steps against the person responsible for posting the offensive materials, restore the material in question (assuming said material doesn't obviously violate the host's TOS - ie, scripts to generate spam, hosting hardcore porn or warez, anything that compromises server or network security.) It's far better than shutting down an entire account, and also far better than trying to police every bit of user-posted content.
Working in the corporate world had its pluses - one of which was going through ISO 9000 certification and sitting in on (endless, snooze-inducing) meetings where all of these procedures were discussed and worked out. I learned a lot...even if sometimes I had to drink a *lot* of coffee to stay awake
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SclekHosting
New member
Lots of copyright laws don't apply in Sweden. I am planning to buy a server in Sweden because I am tired of dealing with copyright reports on my US-based server.
Also, if you have it in your TOS that states that your clients are 100% liable then you won't be liable.
The host is required to remove the illegal content.
Just the other day someone ordered a hosting account on a stolen paypal account, so I had to return the money to the paypal owner or else my paypal account would be suspended.
Then I dealt with the scammer and reported them to their ISP.
Also, if you have it in your TOS that states that your clients are 100% liable then you won't be liable.
The host is required to remove the illegal content.
Just the other day someone ordered a hosting account on a stolen paypal account, so I had to return the money to the paypal owner or else my paypal account would be suspended.
Then I dealt with the scammer and reported them to their ISP.
handsonhosting
New member
So rather than upholding the laws, you're turning your back on it and saying 'not my problem'? It would seem that you would be contributing to the theft and piracy of copyright by doing that.
You will get this in ANY country. If the credit card is stolen, a check bounces, or a paypal account was used fraudulantly, you will be FORCED to return the fees. This is not under your control to change this. The ONLY way you can get around that would be dealing with CASH or dealing in Wire Transfers. Beyond that, you're liable - it's part of doing business.
That's also also part of doing your job. If you have a spammer/scammer on your site, it is your job to report this. As a web host if you didn't, again you're promoting the actions of users to abuse systems.
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