Did US-style “Section 230” Internet Platform Immunity Sneak into Canada through CUSMA? No, It did Not (As Google Just Learned–the Hard Way).

Credit: Author

This question about Section 230 has been asked a number of times since Canada ratified the USMCA/CUSMA text that included Article 19.17.2, which says, in part;

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

At the time, some Silicon Valley supporters, both in Canada and the US, (“Thank You Professor! “Explaining” Section 230 to Canadians) crowed that Section 230 of the Communications Decency Act–the 1996 US legislation that over the years has provided internet platforms in the US with broad civil immunity against liability for illegal or harmful third-party content they have distributed or provided access to—had finally come to Canada. Section 230 has been widely abused by platforms that have refused to take down defamatory and damaging content posted by users on their service despite clear knowledge of the existence of that content and the harm caused by it.

Because of limitations inserted into the Agreement, not everyone agreed that CUSMA required Canada to implement Section 230-like immunities for internet platforms. I am certainly in this camp, as I wrote. (“Did Canada get “Section 230” Shoved Down its Throat in the USMCA?”). However, if there was ever any doubt about whether such immunities do not exist in Canadian law, they were dispelled by a recent decision of the Quebec Superior Court (A.B v Google). It cost Google $500,000 (admittedly a rounding error for this company) to get the message.

That clear message is: Section 230 immunities don’t apply  in Canada so stop trying to hide behind them.  

Prominent IP lawyer Barry Sookman has a detailed post on the case. The plaintiff (whose identity is protected) was wrongly accused by a third party back in 2007 of being a pedophile. The plaintiff attempted to get the original post removed and to have Google take down the link to it. At first Google complied— for its Canadian search service only–but reinstated the link after the 2011 Crookes case in which the Supreme Court of Canada ruled that a hyperlink, by itself, does not constitute publication of the content to which it refers. However, Crookes also led the Court to conclude that once ISPs or other platforms acquire actual or constructive knowledge that their systems are being used to disseminate defamatory content, they may be liable for publishing it unless they take steps to prevent its publication. (For a fuller discussion, see Barry Sookman’s 2011 post on the case here). As a result of Google’s actions (or inaction), the results kept appearing, causing extreme damage and suffering to the plaintiff and his career, despite the fact that he had been wrongly identified. Google was aware of the harm but did nothing.

The judge summarized Google’s actions as follows;

Google variously ignored the Plaintiff, told him it could do nothing, told him it could remove the hyperlink on the Canadian version of its search engine but not the U.S. one, but then allowed it to re-appear on the Canadian version after a 2011 judgment of the Supreme Court of Canada in an unrelated matter involving the publication of hyperlinks. Google finally settled on the position that the Canadian version of Google Search will remove the “STC”, i.e. snippet (short extract from the website), title of the website, and cache (stored snapshot of the website at issue) attached to the hyperlink for the Defamatory Post, but not the hyperlink itself. As for other country-specific versions of Google Search, including that of the U.S., the link and the STC would remain.

Google argued that Quebec law (which provides for platform immunity against publishing defamatory content provided that the platform has no knowledge of the defamation) did not apply, and even if it did, it must be interpreted in a way that is consistent Article 19.17.2 of the USMCA/CUSMA. As Sookman puts it;

Specifically, Google argued that CUSMA requires that the (Quebec) Civil Code liability be constructed as broadly as s.230 of the Communications Decency Act (CDA), a controversial law that provides wide immunity to service providers and which would shield Google from defamation claims brought against it in the United States.”

The Court wasn’t buying this argument. As I have noted elsewhere, when CUSMA was ratified in Canada, an implementation bill was introduced into Parliament to bring Canadian laws into conformity with commitments made in CUSMA. But there were no legislative changes introduced as a result of Article 19.17.2—because none were required. The Article was subject to a footnote that indicated that Canada could comply “through its laws, regulations, or application of existing legal doctrines as applied through judicial decisions.” In other words, secondary and vicarious liability for defamation continues to apply in Canada.

With regard to a potential conflict between the relevant Quebec legislation and CUSMA, the Court noted that any fault that Google committed was not as a result of it being an “information content provider” (as referred to in Article 19.17.2) but rather as an “intermediary that provides technology-based documentary referral services”. According to Quebec law, such an intermediary cannot be held liable for the behaviour of the content provider, but it has potential liability when it becomes aware, as Google was, that its services are being used for illicit activity, and does nothing. Moreover, the language in Article 19.17.2 is far narrower than the immunity provision in Section 230 of the US legislation. Finally, concluded the court, there is a general exception in the CUSMA allowing an override for the preservation of public morals.

Google also argued that Quebec law did not extend to its search engine, which is based in the US, because of jurisdictional issues. This was an argument similar to the one presented in the Equustek case when Google argued that the British Columbia Supreme Court had no authority to order it to delist specified IP-infringing content from its global search engine, as opposed to just Google Search in Canada. That case, which I wrote about at the time, (here) went to the Supreme Court of Canada. Google lost. The Quebec court rejected Google’s jurisdictional arguments because the company had demonstrated that it has the ability to geo-block access to its search services based outside Canada, but elects not to do so. The Court also rejected Google’s argument that Crookes provided it with immunity since hyperlinking does not constitute publication. Google was not an “innocent disseminator” because it knew that the material to which it was providing access was defamatory, yet consistently took no action. Finally, the Court found that Google is not a neutral intermediary but in fact curates the links it provides given that the company presents itself as a reliable source of information, not a purveyor of disinformation.

In summarizing the outcome of the case, Sookman states;

“The court’s interpretation of CUSMA and the decision in Crookes and its characterization of Google as a “curator” of information rather than as a mere intermediary, are also likely findings that will be applicable across the county (sic)”

This is not the first time that Canadian courts have delivered judgements demonstrating clearly that anyone who thinks Section 230 applies in Canada, and that they can hide behind it, is dreaming in technicolour. In March of 2021 I wrote about the case of Frank Guistra, a resident of both British Columbia (BC) and California who sued Twitter in BC for publishing and then refusing to remove defamatory tweets about him. Twitter sought unsuccessfully to have the case heard in California where it would have benefited from Section 230 immunity. As I noted in that post (“Will Article 19.17 of the USMCA/CUSMA Influence Canadian Court Proceedings? (The Long—or Short?—Arm of Section 230”);

“The court asserted territorial competence because the harm to the plaintiff, a BC resident, occurred in BC (as well as elsewhere). It then determined it had jurisdiction–despite the existence of US law on the subject–because under US law the plaintiff would have had no cause of action (because of Section 230) for the harms suffered in BC.”

If we need any further proof that Section 230-like immunity arising from Article 19.17.2 of CUSMA just doesn’t apply north of the 49th parallel, I noted a news item in my local media the other day indicating that BC’s Attorney-General was putting technology companies on notice, warning them they could face orders to stop the distribution of intimate images of BC residents where those images have been shared without consent. As Section 230 critic Danielle Citron has noted, Section 230 as interpreted by various US courts has conferred immunity on sites in the US that encourage and solicit intimate privacy violations, not to mention immunity for simply refusing to remove such images. That is not going to happen in Canada. The new BC law, will set out civil liability for an online company that has not taken reasonable steps to address the non-consensual distribution of images on their site, including an order for damages. (A new provision introduced into the US Senate, the “Stopping Harmful Image Exploitation and Limiting Distribution Act of 2022 (SHIELD Act) would also eliminate Section 230 immunity for platforms in sextortion cases by making such activity a criminal act. Section 230 immunity applies only to immunity in civil cases).

Whether its Google, Twitter, Facebook, Pornhub, or any other internet intermediary trying to hide behind Section 230 in Canada on the basis of Article 19.17.2 of the CUSMA/USMCA, it is time for a reality check. It cost Google $500,000 to learn that lesson. For Google this financial penalty is like a fly landing momentarily on its arm (its legal fees defending the case were likely more) although the plaintiff, who sought $6 million in damages, has appealed the modest sum. Nevertheless, Google’s lawyers will take note and hopefully next time the platform will be more responsive and more responsible when it serves as the knowing distribution platform for false and defamatory information in Canada.

© Hugh Stephens 2023. All Rights Reserved.

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