14 No. 57 JUSTICE What ISPs and web-hosting companies could certainly do is to provide a uniform channel for user complaints. Such a channel (which could be as simple as a link to the CyberTipline) could easily be placed on the complaints or customer service page of the service provider.25 In France, where there is a legal requirement for ISPs to inform officials, this method could work quite efficiently. In other countries, voluntary participation is to be encouraged. From an ethical perspective, ISPs and WHSs can and should have codes of conduct explicitly stating that they deny service to hate mongers who clearly incite violence against certain target groups. This is not a free speech issue, as we are not free to inflict harm on others. It is about taking responsibility for stopping those who abuse the Internet for their vile purposes. ISPs and web-hosting companies should strike a balance between freedom of expression on the one hand, and principles of social responsibility on the other. At the very least, responsibility requires them to adhere to their own terms of service. If their terms of service prohibit the posting of hateful and threatening content, then they should ensure that such content is not present on their servers. This is stressed because Facebook, despite what is said above, still hosts the National Association for the Advancement of White People.26 In October 2015, I conducted a simple search on Facebook: “Holocaust denial” and found among the results: “Holocaust is a Myth,” a few “Holohoax” pages, two “Holocaust denial” groups, and one “Against Holocaust Denial Laws.” In response to pleas to remove those pages, Facebook said that “We think it's important to maintain consistency in our policies, which don't generally prohibit people from making statements about historical events, no matter how ignorant the statement or how awful the event.”27 How can this stance be reconciled with Facebook's prohibition on posting content that is hateful or threatening is something for Facebook managers to reconcile and answer. Anti-hate speech advocates should explain to ISP managers the nature of the contested hate, its potential harms, and why corporate responsibility means taking the content off their servers. This may lead ISPs to take proactive steps, so as to avoid entertaining hate sites on their servers. In this context, it is noteworthy that the United States Congress passed the “Good Samaritan provision,” included in the 1996 Communication Decency Act (section 230-c-2), which protects ISPs that voluntarily take action to restrict access to problematic material: No provider or user of an interactive computer service shall be held liable on account of— (A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.28 ISPs and web-hosting companies should develop standards for responsible and acceptable practices for internet users. ISPs’ terms of service usually grant ISPs the unilateral right and ability to block service to those who violate the terms. ISPs are reluctant to do this, as they wish to maintain business. They are for profit. However, there were instances in which ISPs denied service, commonly due to violation of copyrights. Following complaints about copyright violation, ISPs took the material off their servers. An example of cooperation between an Internet monitoring organization and an ISP concerns the AntiDefamation League (ADL).29 Brian Marcus, who headed the ADL Internet division, explained that private companies may decide not to post messages containing hate speech because this might be bad for their business. The ADL approached a CEO of a Texas web hosting company, asking him where he would draw the line between legitimate and illegitimate speech. The CEO answered that hate is protected speech, but threats are not. Marcus indicated that one of the sites the company had hosted claimed all members of minorities should be 25. YOUTH, PORNOGRAPHY, AND THE INTERNET, at 380 (Dick Thornburgh and Herbert S. Lin eds, 2002); interview with Herb Lin, Washington DC (May 15, 2008). 26. The National Association for the Advancement of White People www.facebook.com/pages/The-NationalAs soc i a t i on - f o r - t he -Advanc emen t - o f -Wh i t e - People/102208269835141 www.facebook.com/pages/ The-National-Association-for-the-Advancement-of-WhitePeople/102208269835141 (last visited Oct. 19, 2015). 27. Miriam Grosman, Facebook firm on Holocaust denial pages, despite survivors’ letter, JTA (July 28, 2011), available at www.jta.org/news/article/2011/07/28/3088748/facebookfirm-on-holocaust-denial-pages-despite-survivors-letter (last visited Oct. 19, 2015). 28. 47 U.S.C. §230, available at www4.law.cornell.edu/ uscode/47/230.html (last visited Oct. 19, 2015). 29. www.adl.org/(last visited Oct. 19, 2015).
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