Canada should be wary of importing Section 230 of the US Communications Decency Act into the new NAFTA, writes Barry Sookman.

By Barry Sookman, August 31, 2018

Canada and the US appear to be getting close to the wire on the renegotiated NAFTA. If the USTR Fact Sheet on the Unites States-Mexico Trade Agreement is accurate, the agreement will contain a new requirement to:

Limit the civil liability of Internet platforms for third-party content that such platforms host or process, outside of the realm intellectual property enforcement, thereby enhancing the economic viability of these engines of growth that depend on user interaction and user content.

The inclusion of this provision should be no surprise. This was one of the United States’ stated objectives for NAFTA. It was also heavily lobbied for by Google and other major US platforms and organizations funded by them. In particular, these platforms have lobbied to require Canada and Mexico to enact laws similar to the controversial Section 230 of the US Communications Decency Act (CDA).

While it is not objectionable for Internet platforms to have some immunity for damage claims where they act as passive, neutral intermediaries and are not aware and have no reason to be aware that their actions are causing damages, it would be a major extension of the law and contrary to the public interest to grant Internet platforms the types of immunities provided for by the CDA. In fact, even Google and other Internet platforms have recently acknowledged that such protection is not required for the Internet to flourish.

Section 230 of the CDA was enacted for the purpose of enabling online platforms to act responsibly to screen and block offensive materials and to foster free expression online. Yet, the CDA has been broadly interpreted to also immunize the publication of offensive conduct that would never be sanctioned in offline domains. This Internet exceptionalism provided protection for sites designed specifically to purvey offensive materials, even in the absence of any good faith efforts to address the abusive content. The breadth of the immunity was recently summarized and criticized by Danielle Citron and Benjamin Wittes in a law review article published in the United States:

Platforms have been protected from liability even though they republished content knowing it might violate the law, encouraged users to post illegal content, changed their design and policies to enable illegal activity, or sold dangerous products. As a result, hundreds of decisions have extended Section 230 immunity, with comparatively few denying or restricting it…

Although Section 230 has secured breathing space for the development of online services and countless opportunities to work, speak, and engage with others, it has produced unjust results. An overbroad reading of the CDA has given platforms a free pass to ignore destructive activities, to deliberately repost illegal material, and to solicit unlawful activities while ensuring that abusers cannot be identified. As Rebecca Tushnet put it well, Section 230 “allows Internet intermediaries to have their free speech and everyone else’s too.”

Companies have too limited an incentive to insist on lawful conduct on their services beyond the narrow scope of their terms of service. They have no duty of care to respond to users or larger societal goals. They have no accountability for destructive uses of their services, even when they encourage those uses. In addition, platforms have invoked Section 230 in an effort to immunize a great deal of activity that has very little to do with speech. It is indeed “power without responsibility.”

Lawmakers in the United States have recognized that Section 230 of the CDA has been used irresponsibly by some online platforms. For example, on Section 230 of the CDA, US Senator Portman recently stated his bi-partisan support for the recently enacted Enabling Sex Traffickers Act (SESTA) exemption to the CDA:

We looked at it and found out that there was a federal law put in place – with good intentions, I believe – back a couple of decades ago to try to ensure freedom of the internet, which of course all of us support. But it provided an effective immunity to these websites even if they were selling people online knowingly. We wrote legislation to get at that, spent about a year trying to get that through the process and eventually got it to a vote and got it passed. The law which provided the immunity was part of the Communications Decency Act that was meant, again, to try to encourage freedom of the internet but was taken too far, particularly in how it was interpreted by the courts.

Senator Wyden, one of the authors of the immunity in section 230 of the CDA, also recently expressed concern in a conference before industry executives saying that:

Section 230 creates the ability for the user experience that [online platforms] want to create. You’ve got a responsibility to use that protection to cultivate a welcoming internet. Section 230 should be a tool for weeding out the bad actors, not an excuse for somebody to go do an ostrich act. My view is that companies have a responsibility to use the tools section 230 gives the platforms. The view that platforms are nothing but neutral pipes for speech isn’t going to fly in this unique time. … I’ve written laws to keep the old rules off your back and I did it under the idea that it was possible for technology leaders to do better. I’m concerned that your employers are now proving me wrong, and time is running out.

There is no need to embed the broad safe harbor in Section 230 of the CDA into NAFTA. Even Google acknowledged this recently in a submission to a UK House of Lords Communication Committee’s inquiry on regulation of the Internet. Contrary to what is being lobbied for in NAFTA, Google endorsed the liability framework in the European Union, which was underpinned by its e-Commerce Directive (ECD). That framework only provides immunity to innocent intermediaries when they do not have knowledge that content they host violates applicable law or control or influence the content. As Google argued, this framework has supported a vibrant Internet in the EU:

The current framework provides a robust regime for responsibility and action, whilst also protecting a free and open internet. It balances the interests and responsibilities of all of these players – supporting transparent, responsible and informed sharing of user generated content. It ensures that those who post material online take responsibility for the content that they produce whilst also fixing platforms with a clear responsibility to act if they are notified of illegal content.

Canada and other Commonwealth country courts take an approach that is similar to the approach under the EU Ecommerce Directive. They generally only hold online intermediaries liable for publication of tortious or other illegal material when they cease to be passive intermediaries, such as when they continue to host defamatory content after receiving notice that the content is defamatory. Canadian law also enables courts to order online intermediaries to take down or disable access to illegal materials including to enforce injunctions against online malefactors, something a recent California Supreme Court has said the CDA also prohibits. The existing Canadian, Commonwealth and EU standards provide a much better balance between the protection of the public and providing Internet platforms with an immunity for content they don’t control or influence or don’t or can’t reasonably know about.

There is no need for the proposed Internet platform immunity in the new NAFTA. However, should it remain in, care must be taken in working out the details of the requirement. The wording in the draft Fact Sheet does not clearly require the kinds of immunities provided for by Section 230 of the CDA. Undoubtedly, however, the trade negotiators will be fleshing out what the summary in the Fact Sheet means. Canada’s negotiating team should be wary of importing Section 230 into the new NAFTA.

Barry Sookman is a member of the Macdonald-Laurier Institute's advisory council and senior partner with McCarthy Tétrault Technology Law Group.

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