In general, a hosting provider or domain name is not responsible for defamatory content found on the website or domain name. However, web hosting providers may be liable for defamation in certain limited circumstances.
§230 of the Communication Decency Act of 1996 states that; “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”
There are several cases where the court has determined that §230 does not apply. For example, §230 does not expand or otherwise limit applicable trademark law. In the case of the Hall c. Mindspring, where Gucci sued Mindspring, a web hosting provider to remove content that violated the Gucci trademark, and informed Mindspring that the website hosted by them violated the Gucci trademark in multiple instances and Mindspring did not remove it, the court concluded that Mindspring could be sued for helping the website violate the Gucci trademark.
This case is a prime example of how hosting providers can be found liable for something that is hosted on their network. If the web hosting company is made aware of the infringing content and knowingly and conscientiously refuses to remove it, then the web hosting company is not immune from lawsuit simply because of §230 of the Communications Decency Act.
This presents a real concern for users and web hosting providers. When do you know that particular content on your networks violates someone’s copyright or trademark? Is it simply governed by exception, so to speak? This presents a responsibility for web hosting companies to responsibly and reasonably monitor what is on their network and remove infringing content. The line is fine, a web hosting company has an inherent motive to attract more customers, even the dishonest ones who violate copyright laws, and on the other hand, help and cooperate with people who own trademarks.
The only sure way to prevent Gucci from going after your hosting company is to deliberately fail to take advantage of US laws and protections. 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 to the United States Constitution, as applied to the States.
If you are a user who wants to use a website for such an infringing purpose, the safe way is to find a hosting company outside the US and use a non-US domain name. Non-residents generally do not exercise jurisdiction over non-residents unless they have knowingly availed themselves of US laws and protections (See US Supreme Court ruling at International Shoe – http:// en.wikipedia.org/wiki/International_Shoe_v._Washington).
The problem with finding such a web hosting company (outside the US) and domain name (outside the US) is that it tends to be more expensive. The US has a lot of competition between hosting companies and many domain name providers. The industry is very highly competitive.
