Vol 7 No 1 - Roger Williams University School of Law

material that appears questionable as regards copyright ordefamation law, without any requirement that ISPs affirmativelyestablish that such information is in fact unprotected. Such broadremoval discretion, with or without notice of alleged impropercontent or infringement, would impede the right of free speech forindividual Internet users.To rectify this problem while still applying the functionspecificprovisions of OCILLA and the E-Commerce Directive toAmerican defamation law, the notice-and-take-down requirementsoutlined in OCILLA could be softened in the defamation context.One possibility for softening OCILLA’s take-down requirementwould be requiring those claiming to be the victim of defamationto approach an ISP not with an allegation of inappropriate contenton its system, but rather with a court injunction, specifying thatthe speech is unprotected and should be removed from theInternet.203 Since the alleged victim of defamation carries theburden of proving that the other party’s speech is in fact false anddefamatory in a courtroom setting, such a showing should also beappropriate to restrict the open forum for free speech that existson the Internet. Requiring such a heightened showing to sanctionthe removal of material based on its content is consistent with theheightened freedom of speech that is guaranteed by the FirstAmendment.204 Also, since the heightened removal standardwould apply only where content was concerned, it would notimpede the privileges of copyright owners under the BerneConvention, which establishes that copyright owners shall not berequired to actively enforce their rights of ownership to retain itsprivileges.205203. Several scholars discussing the reality of a horizontal application of ISP safeharbors have endorsed the need for a court to weigh the competing interests of thevictims of defamation against those of Internet operators before resorting to automaticremoval and the resulting imposition on freedom of expression. See Lucas, supra note162, at 278; see also Dun & Bradsreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749,756-61 (1985) (discussing, among other things, the need to balance the compelling stateinterest in enforcing defamation law against the First Amendment’s interest inallowing the free flow of speech in public debate, and how this balance is altered by thestatus of the victim as a public or private figure and the subject matter of the speech);Gertz v. Robert Welch, Inc., 418 U.S. 323, 345-48 (1974).204. See U.S. Const. amend I.205. See WIPO Copyright Treaties Implementation Act, and Online CopyrightLiability Limitation Act: Hearings on H.R. 2281 and 2280 Before the House Subcomm.On Courts and Intellectual Property of the Comm. on the Judiciary, 105th Cong. 58(1997).