Free Speech

Do we respect free speech as we send takedown requests?

When company content ends up online or consumers' online activities push against the boundaries of copyright or trademark law, a company may consider whether to send a takedown notice to another company to remove online information. If your company is considering such a letter, ensure that you respect others' freedom of expression while you protect your own rights.

• Use informal channels to open discussions. Attempt to resolve conflicts without litigation or its threat.
• Ensure that you have a legal basis to demand that content be taken down. Do not demand takedown of materials that clearly constitute permitted uses of your material, including fair use under copyright law.

Apple: Apple's attempt to clamp down on blog posts about rumored upcoming products was not only a bad legal strategy, according to the judge, but also bad business strategy, according to Forbes. The court held that bloggers have the same right to protect the confidentiality of their sources as do offline reporters; Apple was chastised by Forbes for "biting the fans that feed it." Its poor decision to disregard free speech cost the company substantial legal fees as well as its sparkling reputation in the blogosphere.

• Create Web and email "hotlines" where takedown requests can be contested. Give individuals and content hosts a quick and easy way to contest or respond to takedown requests through an email hotline. Such a service will allow mistakes and relationships to be repaired without costly litigation. If you send a takedown request, ask that links to these hotlines be posted in place of any removed content and be sent to the owner or poster of any removed content.

Viacom: Downplaying fair-use rights led to a lawsuit and media firestorm for Viacom. The company sent Digital Millennium Copyright Act (DMCA) cease-and-desist letters to YouTube in early 2007 demanding the removal of thousands of video clips that it claimed were infringing on its copyrighted material. Some of the clips taken down, including one produced by MoveOn.org, were making fair use of copyrighted material for activities such as political commentary and parody. Viacom conceded that it had erred in issuing the DMCA notice regarding MoveOn's video and agreed to set up a Web site and email "hotline" promising to review any complaints within one business day and reinstate the video if the takedown request was improper. However, many users and online video enthusiasts remain bitter at the company for its actions.

• Consider the potential consequences of any attempt to remove content from the Internet. Cease-and-desist letters and the like often backfire, further fanning the flames of interest in the information that you were hoping to remove and resulting in significant damage to brands and loss of goodwill. As one Internet activist has noted, "The Net interprets censorship as damage and routes around it." Once information has been leaked to the Internet, it is very difficult to put the genie back into the bottle. Trying to do so may only keep the problem in the spotlight.

Bank Julius Baer: Swiss bank Julius Baer ended up in the free speech hot seat and its leaked corporate documents received widespread attention when it tried to prevent the popular Wikileaks site from distributing copies of these documents. When the bank was able to obtain an initial court order disabling the Wikileaks domain name, the incident attracted widespread press attention, the information was republished on many other Internet sites, and the ACLU of Northern California and a number of other public interest groups became involved in the case. Ultimately, the judge recognized the important free speech principles involved and dissolved the injunction, but not before the controversy—and the original data breach—was broadcast worldwide.