Silicon Valley’s Unsuccessful Attempts to Export Section 230 through International Trade Agreements

A couple of weeks ago I wrote about the Omegle case, a potentially ground-breaking suit in the US in which an internet platform, Omegle, was denied the use of the Section 230 liability immunity defence by a judge in Oregon. The case involved Omegle’s online meeting platform in which it randomly pairs strangers for dialogue—and often more. In this case it paired an 11 year old girl with a male sexual predator in his thirties. The resulting online abuse went on for several years. Section 230 is part of legislation passed in the US at the dawn of the internet age, the 1996 Communications Decency Act. Section 230 provides internet platforms with immunity from civil liability for user content posted on their services, regardless of whether the platforms are aware of illegal content or not and regardless of whether they exercise any content moderation.

Silicon Valley is a big fan of Section 230, arguing that without it we would not have the internet, or at least the internet would not have developed the way it has. (Some would say the way it has developed is a big part of the problem). Silicon Valley’s mouthpieces, like the Electronic Frontier Foundation (EFF) and academics like Eric Goldman, Professor of Law at Santa Clara University (in the heart of Silicon Valley), love it and promote it. Goldman thinks Canadians should adopt it and set out a five-point primer on why Canada should be so lucky to have Section 230 as part of its corpus of law. (See my response, here).  “Thank You Professor! “Explaining” Section 230 to Canadians”.

Fortunately, Canada has not adopted Section 230 despite the attempt by Silicon Valley and its acolytes to have the US Government negotiate a Section 230 commitment by Canada (and Mexico) in the recent update to NAFTA, aka the USMCA or CUSMA. While some Section 230-like language was included in the USMCA (Article 19.17) it was effectively nullified by a footnote in the Agreement that stated “For greater certainty, a Party may comply with this Article through its laws, regulations, or application of existing legal doctrines as applied through judicial decisions.” As a result, when the CUSMA omnibus legislation was introduced into Parliament to implement Canada’s obligations under the new NAFTA, there was no reference to any legislation required to implement Article 19.17. Why? Because none was required. Simply put, Section 230 does not exist in Canadian law despite whatever language may exist in USMCA/CUSMA because no legislation was passed to implement anything related to Article 19.17. This “primacy of Parliament” principle was recently confirmed by the Supreme Court of Canada (SCC) in an unrelated case, Society of Composers, Authors and Music Publishers of Canada v. Entertainment Software Association (SOCAN v ESA, 2022).

The issue in the SOCAN/ESA case involved whether the “making available” right, implemented into the Copyright Act in 2012 to ensure Canada’s adherence to the WIPO Internet Treaties (1996), was a new right or simply confirmation that it was already protected. The SCC found that Parliament did not create a new right, notwithstanding treaty language and obligations undertaken by Canada. Meera Nair, in her blog Fair Duty notes that “Canadians should savour a significant theme in this decision—that when examining the intersection of international agreements with domestic law, it is the will of Parliament that matters”. She goes on to quote from the Court’s decision;

“While a treaty can be highly relevant to statutory interpretation, it cannot overwhelm clear legislative intent. The court’s task is to interpret what the legislature (federally and provincially) has enacted and not subordinate this to what the federal executive has agreed to internationally. It is always the domestic statute that governs because “international law cannot be used to support an interpretation that is not permitted by the words of the statute” (para 48, citation omitted).”

Thus, regardless of the wording of Section 19.17 of the CUSMA/USMCA, Section 230 does not exist in Canadian law because no law implementing it has been enacted by Parliament.

A current case before the BC Supreme Court (Guistra v Twitter) further demonstrates this reality. Frank Guistra, a prominent businessman who has also engaged in considerable philanthropy, including with the Clinton Foundation, resides in both British Columbia (BC) and California and has businesses in both. He sued Twitter in BC for refusing to delete defamatory remarks posted by third parties on the platform associating him with the thoroughly discredited and bizarre conspiracy theory related to Clinton and pedophilia, often referred to as “Pizzagate”. Twitter tried to get the case in BC thrown out, arguing that it should be tried in California. The BC Court demurred for a number of reasons, among them the argument that if the case were tried in California, Guistra would have no cause of action because of Section 230. Prominent technology and copyright lawyer Barry Sookman has a full discussion of the case here.

Twitter appealed the BC Court’s decision regarding jurisdiction and lost. While there were several reasons why the British Columbia Supreme Court ruled it had jurisdiction, one of the reasons it gave for rejecting Twitter’s request to transfer the case to California was that this would deny Guistra the opportunity to clear his name–because the case would be summarily dismissed under Section 230. On the contrary, if he has that opportunity in BC it follows that the Section 230 remedy does not apply in Canada. Twitter could use Section 230 to have the case dismissed in a US jurisdiction; not so in Canada.

That will disappoint Eric Goldman, who has argued that Section 230 is the law in Canada (although he added the caveat, “but not really”) and his Canadian counterpart, Michael Geist of the University of Ottawa. During the USMCA/CUSMA negotiations, Prof. Geist suggested that Canada give the US a “win” on this point and signed on to a letter sent to US, Mexican and Canadian trade negotiators by a number of (mostly) US academics urging inclusion of a Section 230 commitment in the Agreement that would bind the Parties.

It is not only Canada that has been the target of the US tech industry’s efforts to lobby the US government to include Section 230 as a trade negotiating objective. The US-Japan Digital Trade Agreement, signed in October 2019  contains similar language (Article 18.2) to that contained in USMCA/CUSMA Article 19.17. However, like that Agreement it also included a “clarifying footnote”, an almost word for word rendition of the caveat Canada used to avoid implementing Section 230 into law. However Japan went one step further and insisted on a side letter to their agreement with the US that said, in part;

“The Parties recognize that there are differences between their respective legal systems governing the liability of interactive computer services suppliers….Moreover, based on a review of information on the operation of Japan’s legal system and discussion between the Parties, the Parties agree that Japan need not change its existing legal system, including laws, regulations, and judicial decisions, governing the liability of interactive computer services suppliers, to comply with Article 18.”

The Japanese want no part of Section 230 either!

Section 230 is also coming under increasing scrutiny in the US, both in Congress and through various reform proposals emanating from think-tanks and elsewhere. Silicon Valley continues to fight tooth and nail to preserve the virtual blanket exemption from civil liability that they were handed back in the infancy of the internet. The Omegle case is one more example of chipping away at the impunity with which platforms have (mis) used Section 230. While the case is not yet concluded, and it is possible that the judge’s decision to dismiss the Section 230 defence offered by Omegle will be reversed on appeal, it is nonetheless one more sign that the days of virtually unrestricted use of a civil liability shield by online interactive computer services (platforms) in the US are coming to an end.

If Section 230 (in its current iteration) is on life support at home in the US, it is not surprising that it is not being embraced by other countries, even though (up to now) US trade negotiators have continued trying to push it on their trading partners. It doesn’t belong in trade agreements, and to date the US Government has been unsuccessful in force feeding it to other countries, including close trading partners such as Canada and Japan. There is a growing awareness around the world that internet intermediaries can and should be held accountable for content on their platforms when they have knowledge of abuse and ignore it, or if the platform and its algorithms is designed to encourage or perpetuate abuse or illegal behaviour. Instead of trying to push Section 230 on to other countries, the US should be moving ahead with Section 230 reform domestically.

© Hugh Stephens 2022. All Rights Reserved.