Internet Platform Immunity Language “Lite” Stays in New NAFTA Agreement, but It’s Not “Baked In” to US or Canadian Law

As we move into 2020, one of the first things on the agenda of the US Senate and Canadian Parliament will be ratification of the new NAFTA (aka USMCA, or CUSMA in Canada). Passage should be relatively smooth given the signing of an updated text (Protocol of Amendment) by officials from the US, Canada and Mexico on December 10, 2019, modifying the text of the Agreement originally signed a year earlier. Indeed the US House voted approval of ratifying legislation by a large margin just over a week later, on December 19, 2019.  It was that lack of ratification (passage of implementing legislation) that had led to the revisions because the Democrats in the US Congress (who command a majority in the House of Representatives) had made it clear to the Trump Administration that certain changes would be required before they would support a vote in the US House. Canada has also not ratified the Agreement, saying that it will move in lock-step with the American ratification process. (Mexico has already ratified.) Now that Prime Minister Trudeau no longer commands a majority in Parliament, easy Canadian ratification is not the “given” that it formerly was, but once the US Congress approves the deal it is hard to imagine that Canada won’t be far behind.

A number of changes were agreed in the amending protocol, covering a range of issues such as dispute settlement, pharmaceutical patents, Mexican labour practices, environmental protection, and rules of origin on steel. What was not amended was Article 19.17, the internet platform immunity clause modelled on Section 230 of the US Communications Decency Act (CDA) of 1996, even though US House Speaker Nancy Pelosi had pushed to have it dropped. The essence of Article 19.17, based on wording in the CDA, states that;

“…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.”

Why would this obscure piece of US legislation be in a trade agreement? For the uninitiated, this requires some explanation.  Drawing on an earlier blog I wrote about Section 230, here is one explanation.

“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.

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.”

This abuse has taken many forms, and has grown over the years. The law has two aspects; a sword allowing internet platforms to remove or block offensive or illegal materials and a shield, providing them with immunity for doing so while absolving them of legal responsibility for material carried on their platform not originated by them. It is the shield that has prevailed and has been used by internet platforms to avoid responsibility for carrying content as varied as ads for sex trafficking (since addressed by the US Congress by carving out an exception for this type of content) to AirBNB denying responsibility for ads it carries that violate municipal bylaws on illegal rentals, to YouTube’s refusal to remove permanently the video of the on-air murder of TV-host Alison Parker, the subject of a recent blog that I posted (“Google is Monetizing Human Tragedy”). YouTube’s policy, citing the protection that it enjoys under Section 230, requires Parker’s father to make a separate request for the video’s removal each time that it is reposted by some internet miscreant.

But despite the growing evidence of abuse, the big Silicon Valley internet platforms love Section 230 for the broad protection against civil liability for content that it gives them in the US. The cyber-libertarian organization Electronic Frontier Foundation (EFF) is a strong advocate of keeping it unchanged in any way. Because of its many abuses Section 230 has–not surprisingly–come under attack in the US Congress. In a moment of probably-regretted but revealing candour, back in early 2018 the EFF argued that “Exporting Section 230 to Mexico and Canada isn’t the only reason to advocate for its inclusion in a modernized NAFTA…baking Section 230 into NAFTA may be the best opportunity we have to protect it domestically.” Heavy lobbying of the US Trade Representative’s Office (USTR) by Silicon Valley succeeded in getting Section 230-type language on the list of US negotiating objectives in the new NAFTA.

This was applauded by some in Canada, such as University of Ottawa law professor Michael Geist who suggested that Canada give the US a “win” on this demand. Geist argued that if such a provision had existed in Canadian law, the Supreme Court of Canada may not have been able to require Google to de-index global search results for a Canadian company (Datalink) found guilty in a provincial court of stealing the intellectual property of another Canadian company (Equustek). Despite being ordered by the court to desist, Datalink continuing to infringe online with impunity. Google objected to the de-indexing order issued by the court and appealed to the Supreme Court, which upheld the provincial order. This case, Google v Equustek, was a victory for Canadian law in curtailing the unbridled power of a giant internet intermediary who took the position that because it operated in multiple jurisdictions it was beyond the application of national law. (It was very strange to see a Canadian law professor advocate for measures that would tie the hands of the Supreme Court of Canada.) In any event, given the leverage that the US exerts in trade negotiations with countries that are heavily dependent on continued secure access to the US market, such as Canada and Mexico, it was perhaps no surprise to find that the final text signed in 2018 included Article 19.17.

There was a silver lining, however, in that the Article 19.17 commitments left sufficient room for the continued application of existing Canadian law without any requirement to enact legislation to create new civil liability immunities for the internet platforms. As I pointed out in an earlier blog on this topic (“Did Canada Get Section 230 Shoved Down its Throat in the USMCA?”), Canada is under no obligation to pass any legislation incorporating Section 230 language. The Parties to the USMCA have the freedom to implement Article 19.17 in various ways including through ongoing application of common law. Existing secondary liability doctrine and precedents will continue to apply. Injunctions such as the one that required Google to de-index search results in the Equustek case will also continue to be applicable. So while there is a reference to the Parties not “adopting or maintaining measures” that would treat internet platforms as content providers for purposes of civil liability, the ability of the Canadian government to hold internet platforms responsible and liable for removal of unlawful content on their platforms is in no way constrained.

This is particularly relevant in the current context because the mandate letter issued by the Prime Minister’s Office to the new Minister for Canadian Heritage, Pablo Rodriguez, states that one of his objectives shall be to;

“Create new regulations for social media platforms, starting with a requirement that all platforms remove illegal content, including hate speech, within 24 hours or face significant penalties. This should include other online harms such as radicalization, incitement to violence, exploitation of children, or creation or distribution of terrorist propaganda.”

In short, USMCA Article 19.17 does not give the internet platforms a shield to evade responsibility for online harms on their services nor will it stop the Canadian Parliament from enacting legislation holding them responsible if they do not act expeditiously to remove such content.

What about in the US? One of the reasons for Speaker Pelosi’s objections to inclusion of Article 19.17 in the USMCA was the concern that it could do exactly what the EFF was advocating, namely limit the ability of the Congress to amend Section 230 in the future. In a frantic last-ditch effort Silicon Valley pushed back. Michael Petricone, SVP Consumer and Regulatory Affairs for the Consumer Technology Association (CTA), a major tech industry trade association pushing for the retention of Section 230 language in the new NAFTA, went on the record to state specifically that;

“Inclusion of Section 230 language in trade agreements does not stop the US from changing the law in the future should (it) choose to do so.”

So in other words, it’s not “baked in” to US law, any more than it is into law in Canada.

In fact, any commitment in a trade agreement can be invalidated by a national legislature since trade commitments are voluntary cessions of sovereignty that can be rolled back if absolutely necessary, although there is usually an economic and sometimes a political price to be paid for doing so.  Normally however countries do not make agreements that they do not intend to keep, so a commitment in a trade agreement provides predictability and helps constrain capricious legislative action. Nonetheless, having a specific commitment on record by the CTA recognizing the ability of Congress to make further changes to Section 230 is significant.

Speaker Pelosi expressed regrets that she had not acted sooner to push for exclusion of Section 230, saying that she had come in too late and had already agreed with USTR Lighthizer not to move any more goalposts. Now that she is fully seized of the issue, perhaps the days of Section 230 language showing up in future US trade agreements are numbered. According to Politico, US Attorney General Barr plans a broad review of Section 230 because of concerns that it’s been extended far beyond what Congress originally intended. Without consensus at home, it makes sense for USTR to cease advocating internationally for positions that many in the US believe do not represent US interests.

But back to Article 19.17. If inclusion of Section 230 “lite” language in NAFTA/USMCA does not stop the US, Canada or Mexico from changing domestic law in future to hold internet platforms more accountable for content on their services, one wonders what all the fuss is about? It’s an unnecessary commitment and one that should not have been forced into the Agreement, but the bottom line is that Article 19.17 has been over-hyped by the tech community. (The CTA claims that it will “promote free expression” and “discourage internet censorship”, which are the usual canards trotted out by the tech industry as excuses to do nothing to moderate offensive and illegal content on the internet platforms).  More important, attempts to use a trade agreement to tie the hands of national legislatures and the courts have failed. Rather than being “baked into” domestic law, Section 230 is being shown up for what it is; a widely abused half-baked measure.

© Hugh Stephens, 2020. All Rights Reserved.