Online Contracts / Terms of Service
Artists are more likely to run into restrictions on their speech due to websites' terms of service, rather than government regulations.
Terms of service are everywhere on the Internet; every time you use a hosting site or service provider, whether you’re uploading photos or video, posting your work on a blog or a website, selling your work online, or even building your own site, you are likely to be subject to at least one service provider’s terms of service, which are basically part of the contract governing your use of the service. Because these terms are thought of as a private negotiation (despite the fact that you probably don’t get to do any negotiating), providers have great leeway in what conditions they can impose.
Terms of service can cover any aspect of using an online service, but those terms most likely to affect artists displaying or distributing their work online are those that deal with what types of material a service provider is willing to host. Most sites have broad rules in their terms against “objectionable content.” For example, the terms of one leading photo-sharing site prohibit “any content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable.” Most will use a common sense standard to determine whether your content complies, but service providers have a lot of discretion in determining what is objectionable. Certain service providers might be more or less strict depending on the audience they are trying to attract. For example, a hosting service billing itself as “family-friendly” might be more restrictive than one aimed specifically at artists and activists. Given the roles that reputation – and community-building plays in shaping terms of service, pure content hosts, who offer server space for independent websites, often have less restrictive terms – but they still have terms of service.
There are several different ways service providers determine if their terms of service have been violated. Some might have employees who review material; others might use a flagging/reporting system by which other users can mark offending material for review and possible removal. Some sites might offer a way for you to object to content’s removal or re-post it, but they don’t have to do so (one exception to this is copyright, where the Digital Millennium Copyright Act establishes a process for re-posting removed content). The important thing to remember is that service providers have the right to restrict even legal material. Even when the First Amendment would clearly prevent government action restricting display of your work, a service provider is well within its rights to refuse to host the content based on its terms of service.
Often the consequences for violating content-based terms are relatively mild – the site will simply remove offending material. But sites commonly reserve the right to cancel an account if terms of service of violated, and some providers may take such action even for minor violations. Almost all sites will assist law enforcement in the case of illegal material. Specific risks with respect to various types of potentially offensive material are discussed in the Issues and Criminal Penalties sections of this site. If you do find yourself in a serious legal battle with a service provider, be aware that most terms will contain what is called a forum-selection clause, which means that if you end up in court it will be in a state or jurisdiction of their choosing, or in private arbitration chosen by the service provider.
Generally, if you’re not sure whether your art complies with your host’s terms, you can contact the provider, or possibly try posting it anyway and leave it to them to decide and potentially remove it. Of course, you should consider – the other sections of this site are a good place to start – what risks you might encounter beyond the providers’ terms. If you’re concerned that your work is especially risky in some way, you should consider talking to a lawyer.
The good news is that the Internet has room for all kinds of sites and innumerable service providers. If you find that someone is unfriendly to your particular viewpoint or work, you can often easily find another content host, or even work with a web host to set up your own site.
Related Cases
Zieper v. Metzinger-- Zieper created a film that he posted online of a fake attack on Times Square, and an FBI agent asked the site host to take it down.