Last week in writing about the issue of SuperBowl ads, I referred to Annex 15-D of the new NAFTA, the US-Mexico-Canada Agreement (USMCA, or CUSMA as it is referred to in Canada) that will restore (once the Agreement is in force) the practice of substituting Canadian ads into the Superbowl broadcast even if Canadians are watching the game on a US channel redistributed in Canada.
If this very minor issue was worthy of inclusion in this broad-reaching trade agreement, it is worth examining in more detail what else is in there. For example, what did Canada and the other two partners agree to that will affect creators and rights-holders? In addition to IP safe harbours for Internet Service Providers in Chapter 20, the intellectual property chapter (which grandfathers Canada’s existing “notice and notice” system), there is another type of safe harbour provision buried in the chapter that deals with digital trade, Chapter 19. Article 19.17 addresses safe harbours for content that may infringe laws in areas other than intellectual property. It says;
“…other than as provided in paragraph 4 below, no Party shall adopt or maintain measures that treat a supplier or user of an interactive computer service as an information content provider in determining liability for harms related to information stored, processed, transmitted, distributed, or made available by the service, except to the extent the supplier or user has, in whole or in part, created, or developed the information”.
An “interactive computer service” is defined as “any system or service that provides or enables electronic access by multiple users to a computer server”, what is commonly referred to as a “platform”. An “information content provider” is “any person or entity that creates or develops, in whole or in part, information provided through the Internet or any other interactive computer service”. In other words, a publisher.
Paragraph 4 provides some additional limitations, e.g.;
Nothing in this Article shall:
(a) apply to any measure of a Party pertaining to intellectual property, including measures addressing liability for intellectual property infringement; or
(b) be construed to enlarge or diminish a Party’s ability to protect or enforce an intellectual property right; or
(c) be construed to prevent:
(i) a Party from enforcing any criminal law; or (ii) a supplier or user of an interactive computer service from complying with a specific, lawful order of a law enforcement authority.
The article is subject to a footnote, which allows exceptions to this broad safe harbour for the protection of public morals including specific exceptions like the Fight Online Sex Trafficking Act (FOSTA) of 2017 in the US (more on this below).
Whewf! What does all this mean?
Section 230 of the US Communications Decency Act (CDA), 1996
It has been construed by some, including bloggers Eric Goldman in the US and Michael Geist in Canada, as in effect bringing Section 230 of the Communications Decency Act, 1996, to Canada, an objective that Goldman, Geist and others endorsed in a letter to the trade ministers of all three North American countries in January of 2018. Geist has been an active proponent of extending this US legislation to Canada for some time. He argued that if Canada had enacted a Section 230-type provision, the Supreme Court of Canada may not been able to require Google to obey a BC court injunction ordering it to delist from its global search index results for a Canadian company found guilty of stealing the intellectual property of another Canadian company (Equustek).
Google fought tooth and nail to resist the application of Canadian law to its services, and lost at both the BC Court of Appeal and the Supreme Court. The decision was an important step in ensuring that large international Internet platforms are held accountable under national laws, and for the supremacy of Canadian law within Canada. Dr. Geist, however, would rather give Google a pass. While he accused Canadian negotiators of “caving” to many US proposals in the IP chapter of the USMCA, he was a keen advocate of caving on this particular issue, arguing that Canada should give the US “a win” on the issue of introducing Section 230 safe harbours for Internet platforms.
Section 230 is Dangerous
However, would this really be a “win” for the US? It would be a win for Google, Facebook and other similar large platforms but many in the US have spoken out against the abuses of Section 230. Ruth Vitale, CEO of Creative Future and a noted film-maker has noted that with regard to Internet intermediaries, “Section 230 provides immunity from civil liability when crimes are carried out on their platforms, even when they know about those activities or, worse, are profiting from them”.
In Canada legal expert Barry Sookman has written, with regard to current Canadian legal practice regarding online publication of tortious or other illegal material that “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” and consequently “there is no need to embed the broad safe harbor in Section 230 of the CDA into NAFTA”. However that was precisely what the Electronic Frontier Foundation (EFF), cyber-libertarians opposed to just about any controls on internet behaviour, tried to do. The EFF argued that the embedding of Section 230 into NAFTA/USMCA “could help roll back the precedent set in the Google v. Equustek case” (echoing Michael Geist, or was Michael Geist echoing the EFF?). EFF also pushed for its inclusion in USMCA because this would lock Section 230 into US law at a time when it was under review in the US because of its use as a shield by the sex-trafficking website Backpage.com. According to the EFF (prior to the enactment of FOSTA into law);
“Exporting Section 230 to Mexico and Canada isn’t the only reason to advocate for its inclusion in a modernized NAFTA. This negotiation comes at a time when Section 230 stands under threat in the United States, currently from the SESTA and FOSTA proposals, which could escalate into demands that platforms also assume greater responsibility for other types of content. As uncomfortable as we are with the lack of openness of trade negotiations, baking Section 230 into NAFTA may be the best opportunity we have to protect it domestically.”
So, now that we know what the motives were for the EFF in pushing for the inclusion of Section 230 in NAFTA, it is important to ask whether they succeeded. Was Section 230 “baked in” to the USMCA as the EFF advocated, thus constraining future amendments in the US and requiring Canada to adopt similar legislation? Is Canada now obliged to enact broad Section 230-type internet safe harbours and give platforms blanket immunity? Before addressing this question, a quick refresher on Section 230 of the CDA would be in order. After all, how does communications decency relate to Internet safe harbours?
History of Section 230
The Communications Decency Act (CDA) of 1996 was introduced in the US Congress to deal with concerns at the dawn of the Internet that children would be exposed to indecent online content. Court cases had suggested that ISPs and other online services that restricted indecent content would, by taking editorial action, become publishers and thus could be held legally responsible for libel and other civil wrongs committed by users of their services. Fearing that this would deter ISPs from screening offensive material, Section 230 was added late in the law-making process. Thus the original purpose of the CDA was to restrict some forms of expression on the Internet. These provisions were later ruled unconstitutional but Section 230 survived. Its wording is similar but not identical to the language in Article 19.17 of the USMCA;
“No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider”.
Over the years Section 230 has been interpreted broadly by US courts, providing virtually blanket immunity to platforms, allowing them to turn a blind eye to various torts (civil wrongs) committed over their services even though they had reason to know what was going on. In short, it has been abused.
The EFF loves it;
“Tucked inside the CDA of 1996 is one of the most valuable tools for protecting freedom of expression and innovation on the Internet, Section 230. This comes as somewhat of a surprise since the original purpose of the legislation was to restrict free speech on the Internet.”
It goes on to say that the Internet community, including the EFF objected to the CDA and, as mentioned, certain elements of the legislation were struck down by the Courts. However, according to the EFF;
“Thankfully, CDA 230 remains and in the years since has far outshone the rest of the law”.
It has outshone in more ways than one.
Abuses Enabled by Section 230
Last year a lawsuit was filed in the US against the website Backpage.com by victims of sex trafficking. Backpage was a classified ad online service, a bit like Craig’s List, except that it had a section offering “adult services”, which allegedly knowingly allowed and encouraged users to post ads related to prostitution and human trafficking, particularly involving minors. It was alleged by state prosecutors that as much as 99% of Backpage’s revenues came from these sources, and that the company was failing to cooperate in curtailing illegal activity. However, despite strong evidence that Backpage actively participated in promoting the website as a sex clearing house, several claims against it were dismissed by US courts on the basis of the immunities provided by Section 230.
This led to the introduction of legislation into the US Congress in early 2017, which became law on April 11 last year. Known in its final form as FOSTA (Fighting Online Sex Trafficking Act) it clarifies that it is illegal to knowingly assist, facilitate, or support sex trafficking, and amended Section 230 to exclude enforcement of federal or state sex trafficking laws from its immunity. The Internet Association (which represents Facebook, Google and Microsoft among others), the EFF, and many others fought tooth and nail against this amendment, putting forth the argument that it was the slippery slope to erosion of freedom of expression on the Internet!
The legislation passed and, in addition, Backpage.com was seized by US Government agencies and its CEO pleaded guilty to charges of facilitating prostitution and money laundering.
Apart from instances of obvious abuse as in the Backpage.com case, there are other concerns about safe harbours being too wide thus allowing platforms to ignore, and inadvertently to promote, other forms of illegal behaviour. Hate and terror websites are an obvious example, accessed through social media platforms, search engines, and even platforms like Youtube. Concern has been expressed about sale of illegal opioids and other drugs over the internet, with platforms hiding behind Section 230 to duck any responsibility. The most recent example of the perverse effects of Section 230 and its misuse in the US is the example of AirBNB claiming Section 230 immunity to push back against municipal regulations requiring that AirBNB listings conform to municipal licensing requirements. Despite the fact that it clears and approves individual listings, and takes a cut of the proceeds, AirBNB claims that as a platform it cannot be held responsible or liable for individual listings on its service if they are in violation of municipal codes.
Because of opioid marketing and other misuses, there is a growing pressure from some US legislators to consider repealing Section 230 or at least to carve out from the protection it affords to platforms more areas beyond just sex trafficking. If USMCA passes in its current form, would Congress still be able to do so or would their hands be tied, as the EFF hoped would be the case? Given that Article 19.17 is subject to the chapter of the USMCA on General Exceptions which includes, inter alia, an exception for “measures necessary to protect public morals” (provided that they do not constitute a disguised restriction on trade), Congress likely still has the ability to act.
Do platforms have a responsibility to take action against sites abusing the law, particularly when they are well aware of the abuses? In my view, absolutely. Does Article 19.17 of the USMCA mean that they no longer have such responsibility in Canada and are now moored permanently in a Canadian safe harbour? Michael Geist (“The USMCA’s Internet “safe harbour” rule — modelled on US law — remedies a long-standing problem in Canada”) and Eric Goldman (“USMCA Article 19.17 requires signatories to adopt Internet immunity provisions similar to Section 230….This a major development in global Internet Law–and, I think, incredibly good (and unexpected) news”) seem to think so. I disagree.
Is Canada Obligated to Implement a Section 230 Equivalent?
First, Canada is under no obligation to pass any legislation incorporating Section 230 language. In fact, the USMCA specifically says that Parties have the freedom to implement Article 19.17 in various ways including through ongoing application of common law. (Footnote 7 reads, “a Party may comply with this Article (19.17) through its laws, regulations or application of existing legal doctrines as applied through judicial decisions”). In other words, Canadian case law will continue to apply and there is no explicit requirement to create safe harbours in Canada for interactive service providers under this provision. The EFF even recognized this back in January when it was pushing to lock Section 230 language into the Agreement;
“The difficulty with the inclusion of Section 230 style safe harbors in NAFTA is that it would either require Canada and Mexico to change their law, or it would require the provision to be watered down in order to become compatible with their existing law—which would make its inclusion pointless”.
What is “pointless” from EFF’s perspective is actually good news from Canada’s because existing Canadian common law will continue to apply to the platforms. For example, injunctions such as the one that required Google to de-index search results as per the Equustek case will continue to be applicable. (As noted above, there is a specific exemption from the application of 19.17 to such circumstances, namely “Nothing in this Article shall…be construed to prevent..(i) a Party from enforcing any criminal law; or (ii) a supplier or user of an interactive computer service from complying with a specific, lawful order of a law enforcement authority”.) While Canada has agreed not to adopt (future) measures to treat platforms as content providers (unless they have a role in creating or developing the content) with regard to liability for harm caused by that content, the USMCA does not create a statutory safe harbour in Canada and platforms will still be required to take measures to comply with the law with respect to content that they distribute. That compliance in Canada will include secondary liability for content distributed on their platforms.
I am informed by lawyer friends who are much more expert in the law than I that while the Parties have agreed under the USMCA to not treat a platform as the creator of content, in other words as a primary publisher, platforms are still liable under the Canadian common law as secondary publishers when they knowingly publish the contents of a primary publisher that is, for example, defamatory. Thus it is an exaggeration to claim, as Michael Geist did in his blog with respect to the Article 19.17 safe harbour language in the USMCA that, “In other words, Internet companies are not liable for the content of their users“.
That does not appear to be the case. At first blush, the optics may appear to support Eric Goldman’s hyped-up interpretation noted above (“USMCA Article 19.17 requires signatories to adopt Internet immunity provisions similar to Section 230”), but the reality is different. It is still unfortunate that Canada agreed to the language in Article 19.17, but the commitment is qualified and constrained in several ways. The devil is truly in the details and fine print. Far from having Section 230 type safe harbours shoved down its throat, Canada protected its ability to regulate platforms and protected the ability of the courts to take action against platform abuse where and when required. That is the truly “good news”, Eric Goldman’s and Michael Geist’s spin notwithstanding.
© Hugh Stephens 2019. All Rights Reserved.
This post originally appeared on the Hugh Stephens Blog and is reproduced with permission and thanks