Generally, a domain name or hosting provider is not responsible for defamatory content found on the website or domain name. However, web hosting providers can be held liable for defamation in certain limited circumstances.
§230 of the Communications Decency Act of 1996 states that; “No provider or user of an interactive computing service will be treated as the publisher or broadcaster of any information provided by another information content provider.”
There are several cases in which the court has determined that §230 does not apply. For example, §230 does not expand or limit otherwise applicable trademark law. In the case of Hall v. Mindspring, where Gucci sued Mindspring, a web host for removing content that violated Gucci’s trademark, and informed Mindspring that the website they hosted violated Gucci’s trademark in several cases and Mindspring did not remove it, the court determined that Mindspring could be sued for helping the website violate Gucci’s trademark.
This case is an excellent example of how hosting providers can be held accountable for something that is hosted on their network. If the web hosting company is informed about the infringing content and knowingly and deliberately refuses to remove it, then the web hosting company is not immune from the lawsuit simply by article 230 of the Communication Decency Act.
This presents a real concern for users and web hosting providers. When do you know that a particular content on your networks violates someone’s copyright or trademark? Is it simply governed by exception, so to speak? This presents the responsibility of web hosting companies to responsibly and reasonably monitor what is on their network and remove infringing content. The line is good, a web hosting company has an inherent motive to hire more clients, even dishonest ones who violate copyright laws, and on the other hand, to help and cooperate with people who are trademark owners.
The only sure way to prevent the likes of Gucci from haunting your hosting company is to intentionally not use the laws and protections of the United States. That is, if the US courts do not have personal jurisdiction over the web hosting company, the US courts could not order the hosting company to remove the infringing content. This is an inherent principle of the due process clause of the 14th Amendment of the United States Constitution, as it applies to states.
If you are a user who wants to use a website for an infringing purpose, the safe way to do so is to find a non-US hosting company and use a non-US domain name. US courts generally do not exercise jurisdiction over nonresidents, unless they have deliberately availed themselves of US laws and protections (See US Supreme Court ruling in International Shoe – http://en.wikipedia.org/wiki/International_Shoe_v._Washington).
The problem with finding such a web host (non-US) AND domain name (non-US) is that it tends to be more expensive. The United States has great competition between hosting companies and many domain name providers. The industry is very competitive.
