While galleries and museums could choose to avoid controversy and exclude potentially controversial art, the Internet, with its wide accessibility and low production costs, promised to be a space of genuinely free expression, a true commons. Anybody could set up a web site and post material on it. Unless that work was legally obscene, contained child pornography, constituted libel, infringed copyright, or presented a direct threat to others, its Internet presence was protected.
As the Internet grew it became more and more a shopping mall, yet, alternative space for art and activism grew as well. Work merging art and activism proved ideally suited to the medium. Such was the work or RTMark, a group of artist-activists who adopt corporate language to criticize corporate actions. And with exponentially more people having access to it, the Internet became the major source of independent information. Predictably, with its expansion efforts to control, it became more insistent.
RTMark was one of the groups hosted by the Thing.net, the primary service provider for activist and arts organizations in the New York area for ten years. In December, 2002, after receiving legal threats from the Dow Chemical Corporation, the Internet access provider NTT/Verio declared it would terminate its contract with the Thing.net. The reason for Dow?s threat was a parody site authored by an online group, the Yes Men, which launched a critique of Dow Chemical for placing profits above reparations for the 1984 lethal gas leak in Bhopal, India. The parody site resembled Dow Chemical’s real site, which lead Dow to send a Digital Millennium Copyright Act (DMCA) complaint claiming trademark infringement.
Verio’s action sets an important precedent. Under legal threats, which might or might not be found valid in a court of law, Verio decided to break its contract with the Thing.net, even though the Yes Men were only one of the hundreds of organizations and individuals that are served by it. This sets a chill on all politically or otherwise controversial expression on the Internet: if a web host’s service is to be cut because a corporate entity dislikes something that appears on one of the web sites it hosts, then web hosts are forced to review all the material they host for potential problems. If the web host does not want to face disrupted service and lost clients, it would probably find it easier to take the role of the censor and reject potentially controversial sites. Where would that lead?
And what about the First Amendment? The fact is that the First Amendment protects speech from government intervention. If Dow Chemicals had sued the Yes Men or Verio they might have faced a First Amendment defense in that the offending site constituted parody and thus enjoys constitutional protection. However, Verio took the initiative of breaking their contract with the Thing.net and decided not to oppose Dow?s threats. As Verio is a private entity, and not a government agent, it is not compelled by the First Amendment. All Verio could be accused of is breach of contract.
As long as telecommunications companies own access to the Internet, it appears that free speech online is a hostage to corporate interests.
And again, in June 2007, one day after the Yes Men made a joke announcement that ExxonMobil plans to turn billions of climate-change victims into a brand-new fuel called Vivoleum, the Yes Men’s upstream internet service provider shut down Vivoleum.com, the Yes Men’s spoof website, and cut off the Yes Men’s email service, in reaction to a complaint whose source they will not identify. The provider, Broadview Networks, also made the Yes Men remove all mention of Exxon from TheYesMen.org before they’d restore the Yes Men’s email service. The Yes Men assume the complainant was Exxon.
After receiving the complaint June 15, Broadview added a “filter” that disabled the Vivoleum.com IP address, and furthermore prevented email from being sent from the Yes Men’s primary IP address. Even after all Exxon logos were removed from both sites and a disclaimer was placed on Vivoleum.com on Tuesday, Broadview would still not remove the filter. (The disclaimer read: “Although Vivoleum is not a real ExxonMobil program, it might as well be.”)
Broadview did restore both IPs after the Vivoleum.com website was completely disabled and all mention of Exxon was removed from TheYesMen.org.
Svetlana Mintcheva, Arts Advocacy Coordinator
The Arts Advocacy Project
National Coalition Against Censorship