Why Where You Host Your Site Matters Legally

Filed as Guides on July 29, 2011 8:00 pm

One of the beautiful things about building your own site is that you can choose where you want to host it and what you want the domain to be. On that front, the Web provides nearly limitless choices with hosts in nearly every corner of the earth and hundreds of domain extensions. The room for opportunity and creativity is incredible.

However, where you host and where what you choose for your domain has a large bearing on your site and there are many factors that you need to consider.

Many of the factors are actually technical. Your server’s proximity to your visitors affects its speed and not all countries are as well connected as you would like for hosting a site. For example, you wouldn’t want to host a site aimed at an Asian audience somewhere in rural South America.

But on top of the technical considerations are legal ones. Whenever you sign up for a hosting account in another country, you’re doing more than moving your site there, you are, in many regards, subjecting yourself to the laws of that nation.

That can have some dire consequences for your site if you aren’t careful and, in extreme cases, can even result in your arrest and possible extradition.

In short, thinking about these issues is an important consideration when choosing a host, but one that few actually weigh.

An Issue of Jurisdiction

Jurisdiction is a basic legal concept that gives a certain government or political body authority or responsibility over a matter. The term refers both to areas of law that sometimes separate responsibilities (such as state vs. Federal crimes) and also geographic areas of responsibility, such as national and state borders.

Typically, the actions you take are the jurisdiction of wherever you are. Your city, state, country, etc. is responsible for policing your behavior or resolving any disputes that arise from it.

However, there are many ways that you can subject yourself to a jurisdiction that is somewhere else. For example, often times when you do business with someone else in another jurisdiction, you may subject yourself to their jurisdiction, either implicitly, just by the act itself, or explicitly, for example, through a contract.

You can also subject yourself to another jurisdiction by doing something within it. In the tangible world, that may be difficult but on the Web it isn’t. If you set up a hosting account in another country, your server and your data reside within that country’s borders. As such, both are within their jurisdiction, even if you physically are not.

This has a lot of potential implications for you and showcase why you should be wary of making such a move, at least until you’ve thoroughly researched the country’s laws and how they may apply to you.

How Things Can Go Wrong

The problem with this is quite simple: Different countries have different laws.

Any kind of law that could apply to your site could be altered. Copyright, libel, obscenity, etc. are all laws where different countries have drastically different rules on the books.

Granted, with many of these laws you can actually subject yourself to other jurisdictions through your action. For example, if you libel someone in another country, they can sue wherever they feel their reputation is harmed.

However, there is a big difference between having a threat of a lawsuit in another jurisdiction and having your data there. Not only does it open up far more jurisdictional issues, it also gives the government of that country a way to strike back at you easily, without going through your local courts.

This can create a serious issue when your host country has different laws than yours. For example, you probably won’t face any significant repercussions for criticizing the King of Thailand as long as you and your site are hosted in the EU (though you may be blocked in Thailand), you can virtually guarantee your site will be shuttered if it is hosted within the country.

Another example is deals with defamation. In the U.S., ISPs and hosts have no obligation to remove allegedly defamatory content. However, UK ISPs are in a very different position, one where it is the best thing for them to do. This means that, if libel issues were to erupt on your site, a British host might be compelled to remove the allegedly defaming content where a U.S. host would likely not.

Being aware of these differences is critical to making a decision about where to host your site, especially if you want to host somewhere overseas.

It’s Not Just Hosts, It’s Domains Too

However, if you think that limited solely to where you physically host your site, the issue is actually much more broad and even includes domains.

The problem is that every domain TLD (.com, .net, .co.uk, etc.) is controlled by and under the jurisdiction of a country. Most of the main Internet TLDs, including .com, are actually under U.S. jurisdiction.

This means that the country overseeing the domain can, and in some cases has, revoke the domain if they feel your site is violating their laws.

For example, sex blogger Violet Blue had her URL shortner revoked by the Libyan government because it used the .ly extension. Even though the content of the domain was legal in the U.S., her home country, the site was forced to move to a .us domain extension.

However, the U.S. might be the ones taking things to the next level. Richard O’Dwyer, a UK citizen who ran the site TV Shack, is actually facing extradition to the U.S. to face charges of criminal copyright infringement. Even though he and his site were both in the UK, the U.S. is claiming jurisdiction because of the fact he used a .com domain.

Though that case is pending, it could be a sharp warning for anyone who is seeking to use a domain TLD from another country, especially if their site might violate its laws in any way.

Bottom Line

The Internet is challenging the very notion of jurisdiction and creating significant problems with the long-established dividing lines of authority and power.

When data and content can trivially cross physical borders, so do the legal issues they often raise.

Though there’s no easy solution to this, you need to be aware of these issues as you think about where to host your site. For the most part, if you can host it in your native country, that’s likely best. However, with all of the technical issues that could raise, especially when it comes to choosing a domain, it may not be practical.

In the meantime, the best thing you can do is research your nation’s laws and the laws of those you work with to make sure you are not running afoul of any of them.

It’s tedious work, but invaluable if you want to ensure that you stay out of trouble on the Web.

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