I am publishing here a comment I have posted on a friends and colleague’s blog where he had related an incident with a deleted Facebook account :
The problem you pointed to here is a very real one that is worthy of a serious debate. Did FB change my life? Yes. Having had an international life, I was finally able to find many of my old classmates and friends that I had lost through my expatriations over the years. For the rest, I am more active on Twitter where the issues are very similar to FB. Both are the most popular examples of free networking services that allow great networking opportunities with the past and the present and also for making new contacts for the future. I can tell you with great joy that my ‘replies’ on Twitter and discussions on Linkedin have led to a few contacts with Headhunters. In this difficult economic climate, I should be pleased with this. Nevertheless, I have recently encountered a similar issue with Twitter in which Twitter’s liability is more evident. Last weekend again, Twitter was subject to several spam/fishing attacks (see Phish Twice a Day – The Twitter Diet – http://bit.ly/zsp2n) Maybe this could be related to something that happened to me: on Saturday night my Twitter account was ‘suspended’ with no prior notice or explanation whatsoever!!! I started using my private/back up account and with the help and support of other Twitterers contesting Twitter’s action and asking to
“#putitback”, the account was ‘liberated’ yesterday in the same way as it was suspended, without any explanation from Twitter. What is very regrettable here, and I hope SNSs would admit liability for it, is the damage caused not only because you are cut off from your contacts but also the serious damage to your reputation. The message posted by Twitter when trying to access the account stipulated “Sorry, the account you were headed to has been suspended due to strange activity. Mosey along now, nothing to see here.” Is this not enough shame to constitute defamation when untrue, and where the service provider has not notified the account holder in order to allow a defense, nor demonstrated any attempt to verify the allegations? Remember that most SNSs are now indexed and put-up by the Google search engine, which means that any search for the user’s name would come out with the above message. This is represents a serious threat to users’ integrity, reputation and rights. SNSs give themselves the discretion to act arbitriarily on the basis that the service is offered free of charge!! Users pay the price for access by allowing SNSs to share their private information for the sake of targeted advertisement although in the particular case of Twitter, the business model is kept secret.
Another case mentioned to me by Anne Collier, Director of Kids Safety and Net Family, is evoked in Anne’s blog http://tinyurl.com/ppbjlf. These cases are not rare and there is serious need of reflexion on how to deal with the ISP’s liability issues. As you mentioned, under the section 230 US DMCA , the service provider is exempt of immunity for third party content. The ISP immunity under the EU regulations is not so impermeable and if there is an immunity for ISP acting as mere conduit, passively caching or hosting third party content, the shield of protection of the E-commerce immunity for ISP’s turns into a stick with which they can be beaten (to use Gavin Sutter’s expression). As soon as the ISP has been notified, it has a duty to react ‘expeditiously’ to remove or block access to the infringing content. If the ISP does not comply, it becomes liable for content under the knowledge based liability of publisher or editor; see ‘Mumsnet settles with Gina Ford but queries libel law’ http://www.out-law.com/page... ISP’s are also subject to a certain number of good practices, such as including clear, direct and immediate means of contact on their webpage in order to allow users to contact them for any complaints or assistance. see ‘ECJ says websites need phone numbers or web forms’ http://www.out-law.com/page-9545 and ECJ position http://www.mofo.com/news/updates/files/15088.html Now, all this development is based on the EU regulations and most SNSs are US based, are they subject to the EU regulations when targeting EU users? This is a question of jurisdiction to clarify.