Vol 7 No 1 - Roger Williams University School of Law

of a defamatory statement.While safe harbor provisions employed by the EU E-Commerce Directive and OCILLA offer a more evaluative look atthe activities engaged in by Internet providers for determiningprovider liability in a defamation context, there remains oneaspect of OCILLA that conflicts with another fundamentalcharacteristic of U.S. defamation law. These conflicting provisionsare the “notice and take-down” provisions statutorily createdthrough OCILLA and the freedom of speech guarantee of the FirstAmendment.178IV. ISP LIABILITY UNDER OCILLA AND THE FIRST AMENDMENTTo retain OCILLA’s safe harbor provision limiting ISPliability for third-party information posted on its service, anInternet provider must promptly remove any allegedly infringingmaterial upon notification by a copyright owner.179 This featureof OCILLA arguably impedes the First Amendment right to freespeech, because the Act in effect requires an ISP to remove orblock access to information upon a mere allegation ofinfringement, without a required showing that an infringementhas indeed occurred. As Alfred Yen argued, OCILLA’s notice andtake-down provisions could have First Amendment implicationseven in a copyright context:. . . [T]he ambiguity of copyright law will make itimpossible to determine accurately whether manypotential infringements are, in fact, infringement . . .even if the subscriber’s behavior appears to be infringing,the ISP has no way of reliably knowing whether thesubscriber has permission for the use or the copyrightholder in question objects.These problems place ISPs in a quandary. If theymonitor their networks, they will undoubtedly stumbleacross potential infringements, but they also will beforced to decide whether to remove those potential178. While freedom of speech is a fundamental concern in Europe as well as in theUnited States, U.S. defamation law is subject to heightened scrutiny because it mustcomply with the First Amendment to the Constitution. The First Amendment reads, inpertinent part, “Congress shall make no law . . . abridging the freedom of speech . . .”U.S. Const. amend. I, cl. 2.179. See id.