Freedom of Speech or Defamation?

South Africa’s De Beers is in the middle of a heated dispute with the U.S. based domain registrar Joker.com who’s users deployed spoof ads mocking De Beers on the New York Time’s website. The ad in question announced that diamond purchases “will enable us to donate a prosthetic for an African whose hand was lost in diamond conflicts.” De Beers has demanded that Joker.com shutdown the spoof website or face legal action. This comes just after a group of activist-artists spoofed the New York Times itself by distributing fake copies of the mag to thousands of people in New York and Los Angeles.

What’s interesting is that De Beers didn’t go after the culprits, but are instead demanding that the domain registrar step-in and shut down the site. The Electronic Frontiers Foundation questions what these attacks on parody (traditionally protected by law in the U.S.), web hosts and domain registrars will mean for the future of censorship online.

Intermediaries frequently argue (incorrectly) that they have no choice but to shut down domain names or sites when they receive a legal complaint. But they do have a choice, at least in the United States. As EFF has explained to De Beers, U.S. law provides ample protection for intermediaries, in large part to ensure that online speech and commerce continues to thrive. For example, in 1996, Congress passed Section 230 of the Communications Decency Act which immunizes internet intermediaries from most kinds of liability associated with the content that their customers place on their own sites. Similarly, the Digital Millennium Copyright Act (passed in 1998) provides a safe harbor from copyright infringement liability for intermediaries who follow straightforward procedures in response to valid takedown notices. With these strong legal protections, intermediaries can and should refuse to respond to pressure from companies like De Beers.

Will the poignant work of the New York Times parodists stay up for the world to see? Will other critical online speakers be silenced by improper threats against their virtual soapboxes? The answer may ultimately depend more on the ability of targets to intimidate domain name registrars than on the legality of the underlying speech itself.