Does the “New NAFTA” (USMCA) Prevent Canada–and the other USMCA Partners–from holding Internet Platforms Accountable for Disseminating Harmful Content?

The USMCA finally came into effect a few days ago, on July 1, 2020, committing the US, Canada and Mexico to the treaty provisions the three countries agreed to in the 34 chapters, four Annexes and 16 side letters that comprise the text of the Agreement. Among its many provisions is Article 19.17 (in the Digital Trade chapter) which reads, 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.” (19.17.2)

In plain English this means that none of the three governments party to the Agreement will hold an internet platform (such as Google, Amazon, Facebook, YouTube, Twitter and hosts of others providing similar “interactive” services) liable for content that appears on their platform. Responsibility rests with the source of the content. Unlike a newspaper, the internet platforms are not to be considered “publishers” of the content they carry and distribute. This is sometimes referred to as “the shield”.

The text of the Agreement goes on to say that;

“No Party shall impose liability on a supplier or user of an interactive computer service on account of…any action voluntarily taken in good faith by the supplier or user to restrict access to or availability of material that is accessible or available through its supply or use of the interactive computer services and that the supplier or user considers to be harmful or objectionable” (19.17.3 a)

Translation: The platform is allowed to take down content that it considers to be “harmful or objectionable” without fear of liability. This is sometimes called “the sword”.

Does this mean that Canada and the other two USMCA partners are now no longer able to enact legislation to hold internet platforms accountable in civil law for illegal, discriminatory, racist, violent or other objectionable and harmful content that they distribute? From a literal reading of the USMCA commitment the three countries made, the short answer is “possibly yes” but from a practical real-world perspective, the answer is a clear “no”.

The inclusion of Article 19.17 was intended by US negotiators to entrench the (in)famous and controversial Section 230 of the 1996 Communications Decency Act into the USMCA, urged on by Silicon Valley and groups like the cyber-libertarian Electronic Frontier Foundation (EFF) that proclaimed that it wanted to “bake in” Section 230 into NAFTA in order to prevent Congress from making changes to it. Section 230 has become very controversial in the US for a couple of reasons. First, the “shield” aspect of the legislation has been misused by internet platforms to allow them to ignore egregious and obvious illegal content disseminated on their services, ranging from sex trafficking to revenge porn to marketing of banned weapons and more, because they are protected from civil liability for such content. US courts have allowed them invoke Section 230’s liability shield as a reason to refuse to remove such content, even when they have been well aware of its nature and even when they have monetized it by selling ads targeted at consumers attracted to the abusive material. Second, the “sword” aspect of the legislation, although little used, has been attacked by conservative commentators (and Donald Trump) when platforms, such as Twitter, have moderated or taken down objectionable content, in the most recent case false information posted by Trump about voter fraud. Giving platforms protection when removing content that was considered “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable”, was the original reason for passage of the legislation more than twenty years ago.

At the time the text of the USMCA was first made public, supporters of Section 230 in Canada and the US went into raptures. University of Ottawa professor Michael Geist had been one of five Canadian signatories on a letter initiated by Santa Clara University law professor Eric Goldman to the three NAFTA negotiators urging that the new Agreement contain protection from liability for online intermediaries for third party online content, similar to Section 230. At the time the letter was sent back in early 2018, other commentators in the US warned that inclusion of blanket immunities for internet platforms in the new NAFTA would “enrich irresponsible actors and undermine the public interest.” Despite these warnings from many within the US, the negotiated draft USMCA text included Section 230-like language. When that was announced, Geist declared that what eventually became Article 19.17 was a “welcome addition” to the Agreement, and declared it meant that;

“Internet companies are not liable for the content of their users. While this does not require the creation of a legislative safe harbour, it restricts the ability for a country to create a system premised on liability for Internet companies. Moreover, the same provision excludes liability for actions taken by Internet companies to remove harmful or objectionable content on a voluntary basis.”

His cheerleading continued;

“The USMCA’s Internet “safe harbour” rule — modelled on US law — remedies a long-standing problem in Canada”

Goldman likewise was enthusiastic;

“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”)

In fact the Agreement did not require any of the Parties to the USMCA to adopt internet immunity provisions (if they didn’t already have them in law), as I clearly outlined in my blog in February last year, “Did Canada get Section 230 Shoved Down its Throat in the USMCA?”. Canada remains free to apply existing laws dealing with content on internet platforms, including those related to secondary liability. Even Michael Geist acknowledges that “this (Article 19.17) does not require the creation of a legislative safe harbour”. However, Geist was technically correct in saying that USMCA appears to restrict the ability of a USMCA signatory country to impose future liability on internet companies for allowing harmful content on their platforms. It also made it a contravention of the Agreement to impose liability on internet platforms if they remove objectionable material. That obligation applies to all three signatories to the Agreement (US, Canada, Mexico).

Thus it was with great interest that I listened to a recent podcast where Michael Geist hosted Eric Goldman to discuss this very issue, namely whether its USMCA commitments constrain Canada from holding internet platforms to greater account for the content that they disseminate. Since the initial signing of the USMCA in November of 2018, the text of the Agreement has undergone some minor revisions but what has really changed is the status of Section 230 in the US. Just prior to the conclusion of the final revisions deemed necessary to get the USMCA ratified in the Democrat-controlled House of Representatives, House Speaker Nancy Pelosi suggested that Article 19.17 be dropped because it had become so controversial in the US. The early warnings about the dangers of Section 230 blanket immunities were gaining traction. However, in the end removal of Article 19.17 was “one-last-minute-change-too-many” and the amendment was not made. The revised Agreement that was signed on December 10, 2019 included the contentious Article 19.17 language. However, in the rearguard action fought by Silicon Valley to keep Article 19.17 in the USMCA, it conceded (in a public statement issued by the Consumer Technology Association) 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.”

Truer words were never spoken. The ink was barely dry on the Revised Protocol of Amendment for the USMCA when the US Justice Department began holding public sessions into how Section 230 should be revised. The fact that it was included as a US obligation in the USMCA was not even mentioned. More recently President Trump invoked Section 230 reform as part of his infuriated reaction to moderation of a couple of his tweets by Twitter. As a result, the US Department of Justice (DOJ) has published a paper proposing a number of areas for change. Some of these proposals address abuses of the safe harbour liability shield by platforms; others seem more designed to address Trump’s criticisms of alleged “platform censorship” (in Trump’s view, misuse of “the sword”). The point in this blog is not to analyze what changes the Administration may propose and Congress may enact to Section 230, but to highlight the fact that Article 19.17 of the USMCA is not even a road-bump in slowing down the Administration’s momentum to modify Section 230—for better or for worse. If the EFF’s real goal in pushing the US Trade Representative’s Office to negotiate inclusion of Article 19.17 in the USMCA was more to “bake in” Section 230 as a treaty commitment so that Congress could not modify it rather than to export Section 230 rules to Canada, that tactic has been a dismal failure. This was acknowledged as much by both Geist and Goldman in their recent podcast.

In the podcast, Goldman notes that both Trump and Joe Biden have both gone on record in calling for reform or removal of Section 230, albeit for different reasons, and he assumes that the next Congress will want to amend it. Given differing views as to what needs to be fixed, it is possible that Congressional gridlock will mean that Section 230 will survive a bit longer, but its days are clearly numbered. With regard to Canada, in Goldman’s view, Canada is unlikely to enact anything like a Section 230 law even though (in his opinion) Canada’s current legal framework is not consistent with Article 19.17 commitments. His conclusion was that Canada will be out of compliance, but has no intention of enforcing the commitment.

If Canada is out of compliance (a debatable point at best), what about the US? Since both the Democrats and Republicans seem hell-bent on changing Section 230, the US will likely be the first to be out of technical compliance with the USMCA when it changes legislation to make platforms civilly liable for at least some of the content they carry, under certain conditions. For his part, Michael Geist accepted that Canada is unlikely to put forward any Section 230 legislation, but argued that Article 19.17 is nonetheless useful as a standard, and may cause Canadian officials to think twice before introducing legislation that could or would run contrary provisions agreed to in the USMCA. Goldman disabused him of the restraining effects of USMCA;

“I would just note that Congress will have no such hesitation. Congress will absolutely blast forward with efforts to tinker with Section 230 even if that would also contravene the USMCA…I don’t know who really plans to abide by it, and if no-one plans to abide by it, I don’t understand what the point was”.

I agree. What was the point? It is clear that Article 19.17 is a dead letter when it comes to constraining the ability of the governments of the US, Canada, or Mexico from holding internet platforms responsible, or at least more responsible, for the content that they allow to be disseminated. Even cheerleaders for Section 230, like Michael Geist and Eric Goldman, (both signatories on the January 2018 letter to the three North American governments urging inclusion of Section 230 immunities in the new NAFTA Agreement) are finally coming around to a more realistic view of what Article 19.17 of the USMCA actually means in terms of real-world impact. Zilch. And that’s a good thing.

Governments and legislatures (Parliament in Canada, the US Congress, the Congreso de la Union in Mexico) are not going to allow themselves to be handcuffed by an outdated law that has been misused by internet platforms over the years to evade their responsibility to take down and moderate harmful content just because of some ambiguous wording in the new NAFTA.

© Hugh Stephens 2020. All Rights Reserved.

Hugh Stephens is an Executive Fellow, The School of Public Policy; and Distinguished Fellow, Asia Pacific Foundation of Canada

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