Once you decide to publish online, whether by posting in a forum, joining a discussion group, blogging, or starting your own website, there are a host of legal issues that may come into play. Understanding your legal rights -- and potential sources of liability -- can help you make an intelligent choice as to what platform you use and what precautions you take when you speak online. Some of the most important issues to consider are free speech protections, anonymity, ownership of content, and vulnerability to others' copyright claims.
Free Speech Protection
If you live in the United States, you have a First Amendment right to engage in speech on the Internet. This legal principle allows you to use the Internet as a powerful medium to communicate facts, ideas, and opinions. However, there are two important limits on your online activities which you should be aware of:
- Certain kinds of conduct and speech, such as defamation, are not legally protected.
- Private website operators and hosting services can control what kind of speech appears on their site and servers.
These limits may threaten your ability to publish certain types of content online, especially if you are making a controversial point or are criticizing somebody. You may face situations where your online activity approaches the legal "grey area" between speech that is protected and speech that is not, and offended persons may pressure your hosting service or website operator to remove material that they consider unlawful or simply do not like. Many web hosts will remove content or cancel your account if they receive a complaint or deem content offensive, assuming their terms of service permit them to do so.
Regardless of their public stance on free speech issues, hosting services and websites that allow users to create or submit content enjoy immunity in the United States when it comes to claims of defamation, privacy, and other similar torts based on the activities of their users. This means that hosting services and website operators do not have to remove content just because someone complains about it, and they are protected from liability even when they are on notice of the potential defamatory character of the statements. For more information on this law, see our primer on the Communications Decency Act ("CDA 230").
If you think your content might be controversial, you should think about what sort of platform or service will protect your speech most strongly. You have perhaps the least amount of protection when posting on somebody else's blog or message board, as a moderator can generally remove any post at any time. Starting your own blog gives you more room to operate, but blog-hosting sites generally impose some restrictions on the content that you can post. If you are planning to start a blog, you should carefully consult each hosting provider's terms & conditions to see which site is the most protective of free speech. The section of this guide that provides a evaluation of terms of service might also be helpful.
You are likely to have the most freedom if you start your own website. If you are thinking of starting your own site to publish controversial material, you should consider the extent to which your hosting company will respect your freedom of speech. Sometimes, when faced with a speech-related lawsuit, hosting sites will sacrifice your freedom of speech and send you looking for a new home on the Internet. This type of action is most likely to occur with large, mainstream web hosts that have many users and a public reputation to worry about.
If you know that you will be covering a controversial subject or expressing a controversial opinion, you may want to consider one of the hosts that make an explicit effort to respect free speech rights. Computer Tyme and Project DoD are two examples of web hosts that make it a point to protect free speech. You can find other examples of web hosts that are proud of their free speech stance on the Dedicated Hosting Guide's post "Free Speech Hosting: 11 Web Hosts That Won’t Dump You at the First Sign of Controversy."
You should also keep in mind that your choice of a domain name registrar could have an impact on your ability to keep your site up and running in the face of legal threats. In early 2007, CNET conducted a survey of registrars to see which were more "free speech friendly." They found that the French registrar Gandi.net and New Orleans-based DirectNIC offered the most extensive guarantees against unnecessary domain name suspensions.
Another category of speech that may be removed from a website is speech that allegedly infringes on somebody else's copyright. For information on this subject, please read the section regarding the Digital Millennium Copyright Act.
Many people choose to engage in online speech anonymously, or under a pseudonym, for a variety of reasons. For information on making this decision, please see our section on deciding whether to publish anonymously.
While you have a right to engage in anonymous speech in the U.S., there are certain situations in which you can lose this protection. For one, certain sites simply do not allow their users to be anonymous. Social networking sites, for example, like Facebook, often require their users to act under their real names. Accordingly, you should consider a site's terms of service on this subject if anonymity is important to you.
Further, others can use a lawsuit to discover the identity of an anonymous Internet user. For more information on this danger, please consult our sectio on Potential Legal Challenges to Anonymity.
Some sites are more protective of their users' anonymity than others. Of course, virtually any service will reveal your information if served with valid legal process -- otherwise the company would be in contempt of court. But there are still ways to protect yourself. If you are choosing between blog-hosting sites, be aware that Blogger and LiveJournal (but not TypePad) do not require names or credit card numbers for registration. By signing up through an anonymizing service, like Tor, and using an anonymous e-mail account, you gain greater protection from being unmasked, even in the face of a subpoena to the web-hosting service.
If protecting your anonymity is important to you, please consult our list of technical precautions you can take to protect your anonymity ahead of a potential lawsuit.
Ownership of Content
Six Apart does not claim ownership of the Content you upload, place or post through this Site or the Services. By uploading, placing or posting Content through this Site or the Services, you grant Six Apart a world-wide, royalty-free, and non-exclusive license to reproduce, modify, adapt and publish the Content solely for the purpose of displaying, distributing and promoting such Content on Six Apart's Internet properties. This license exists only for as long as you continue to be a Six Apart customer and shall be terminated at the time your Account is terminated.
Please see the section on Evaluating Terms of Service for a comparison of some of the sites you may be considering.
Vulnerability to Copyright Claims
If somebody thinks that your online activities are infringing their copyright, the Digital Millennium Copyright Act may come into play. The DMCA is a federal law that establishes how website operators -- such as blog-hosting sites -- can avoid liability if a copyright holder notifies them that one of their users is engaging in infringing activity or has posted infringing content. It is common for hosting sites to have a section describing their DMCA procedure, including what a copyright holder must do to notify the hosting site of alleged infringement by a user, when the hosting site will take down user material that is alleged to be infringing, when and how the hosting site will notify the user of the DMCA allegation, and what the user can do to respond to the allegation and get their material back up on the site. By way of example, here is Google's DMCA policy.
If you receive notification that your material has been the subject of a DMCA notice, Chilling Effects has a helpful section describing what this means and how to respond. Also please refer to our section on responding to a DMCA takedown notice if your material is removed.