The Electronic Frontier Foundation's Alison Dame-Boyle has a good post on Victoria's Secret bad-tempered attempt to censor a campaign by the feminist group FORCE: Upsetting Rape Culture, which parodied the "Sure Thing" and "Unwrap Me" underwear that Victoria's Secret sells to high-school students with its PINK line, replacing the slogans with phrases like "Ask First" and "Respect."
Victoria's Secret used takedown notices to get FORCE's web-host to shut down its site, to get Twitter to yank the FORCE's @LoveConsent account, shutting down the dialogue about consent and rape just as it was gaining momentum. It's a sobering reminder of the power of copyright takedown rules to be used to censor political speech, and of the fragility of free speech in an era where the entertainment industry has lobbied successfully for laws that allow censorship without a court order.
Though nothing was down for long—the site was only down briefly as FORCE moved to a different hosting provider and the Twitter account was back up by Friday, December 7—even the brief downtime hurt the campaign. FORCE had purposefully launched PINK Loves CONSENT immediately prior to the fashion show to capitalize on the publicity surrounding the event, which attracted nearly 10 million viewers. During the show, tweets about body acceptance and the importance of normalizing a culture of enthusiastic consent made #loveconsent the number one hashtag associated with #victoriassecret. The Facebook page was similarly inundated. FORCE was able to use Victoria’s Secret’s popularity to raise awareness and generate discussion about rape culture on an unprecedented level. When its Twitter account and subsequently its websites were taken down, that discussion was interrupted at a vital time.
These takedowns highlight, once again, the weakest link problem that plagues Internet speech. Individuals and organizations rely on service providers to help them communicate with the world (YouTube, Facebook, Twitter, etc.). A copyright complaint to an intermediary generally triggers a virtually automatic takedown, because the intermediary has a strong interest in complying with the Digital Millenium Copyright Act (DMCA) and preserving its safe harbor from copyright liability. A trademark complaint directed to one of those providers can also mean a fast and easy takedown given that those service providers usually don’t have the resources and/or the inclination to investigate trademark infringement claims. Moreover, because there is no counter-notice procedure, the targets of an improper trademark takedown have no easy way to get their content back up.