Intermediary liability for internet services under NAFTA 2.0

  • United States
  • 01/21/2019
  • Norton Rose Fulbright

USMCA provision

As organizations around the globe grapple with disinformation and fake news, the digital trade provisions in NAFTA’s successor may help assuage fears that internet content providers could be held responsible for such content. The US-Mexico-Canada Agreement (USMCA) contains important provisions dealing with the issues of free speech and digital trade.Article 19.17 of the USMCA relates to Interactive Computer Services (ICS) and provides:

[N]o 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.

It is important to note that this provision does not purport to remove all liability from digital intermediaries. Rather, this provision prohibits holding ICSs to the same standard as the content creators.

Current US law

Article 19.17 of the USMCA is largely adapted from section 230©(1) of the U.S. Communications Decency Act (CDA). The CDA states that:

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.

An ICS is defined in the CDA as: “any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the internet and such systems operated or services offered by libraries or educational institutions.”

An Information Content Provider (ICP) is defined in the CDA as: “any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the internet or any other interactive computer service.”

Although the CDA prima facie provides the same level of protection to ICSs as will the USMCA, some U.S. courts have interpreted this more broadly. In Chicago Lawyers’ Committee for Civil Rights Under the Law Inc. v Craigslist, Inc. (461 F. Supp. 2d 681, 2006 U.S. Dist. LEXIS 82973 (N.D. Ill. Nov. 14, 2006)), the U.S. District Court for the Norther District of Illinois stated that “Near-unanimous case law holds that 47 U.S.C.S. § 230© affords immunity to interactive computer services (ICSs) against suits that seek to hold an ICS liable for third-party content.” However, other courts have taken the more nuanced view that immunity from liability for third party content only exists where the ICP has merely passively displayed the content.

Are major changes coming to Canada?

It remains to be seen how Article 19.17 will be implemented in Canadian law. No statutory immunity exists for service providers and some courts have been willing to find liability for third party content. In Carter v. B.C. Federation of Foster Parents Assn., 2005 BCCA 398, the British Columbia Court of Appeal found that an internet forum should be held liable for failing to “take effective steps [to] remove defamatory content”.

Additionally, a similar concept exists in Canadian copyright law. The Supreme Court of Canada has found that an internet service provider may become liable for copyright infringement if it has notice of offending material posted on its server and fails to comply with the notice.

Although Canadian courts seem to be more willing to hold service providers liable, they generally do not hold service providers to the same standard as third party content creators under the current law. Although Canadian courts may choose to adopt U.S. jurisprudence with the introduction of Article 19.17, Canadian law in this respect may already be compliant with the USMCA.