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NAFTA offers the chance to establish long overdue online speech safeguards

Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can be reached at mgeist@uottawa.ca or online at www.michaelgeist.ca.

During the earliest days of the commercial internet, the United States enacted the Communications Decency Act, legislation designed to address two concerns with the rapidly growing online world: the availability of obscene materials and the liability of internet services hosting third-party content.

While the obscenity provisions in the 1996 law were quickly struck down as unconstitutional by the U.S. Supreme Court, the liability rules emerged as a cornerstone of U.S. internet policy.

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The rules, which many regard as the single most important legal protection for free speech on the internet, establish a safe harbour that ensures online services are not liable for the content posted by their users. Over the past two decades, the CDA Section 203(c) provision has been used by every major internet service – from Google to Amazon to Airbnb – to ensure that courts, not private companies, determine what is lawful and permitted to remain online.

By creating a legal safe harbour for non-copyright third-party content (copyright law establishes an alternative system for addressing claims of infringement and the liability clearly applies to original content created by an online service), thousands of internet sites and services have been able to err on the side of free speech without active monitoring of posts or takedowns based on unproven claims.

The rules can be controversial, particularly at a time when policy makers and the public are demanding greater vigilance from online providers in countering disinformation campaigns, cyber-bullying, and hate online. Yet, there is room to strike a balance to ensure that illegal content is swiftly identified and taken down, while avoiding the risks that would come with active monitoring of content posted by billions of users by internet giants.

Unlike the United States, Canada does not have equivalent online legal protections for third-party content. In practice, that has meant the same companies that require court orders prior to the removal of content for claims originating in the United States, may take down lawful content in Canada based on mere unproven allegations due to fears of legal liability. Moreover, the absence of safe-harbour protections has proven to be a significant disincentive for both new and established services to use Canada to store data or maintain a local presence.

The absence of Canadian safe-harbour rules took on heightened importance this year with the Supreme Court of Canada's Equustek ruling, in which it concluded that a Canadian court could issue a global takedown order requiring Google to remove results from its search index for users worldwide. A U.S. court recently issued an injunction blocking enforcement of the Canadian order, noting that it "threatens free speech on the global internet" by effectively overriding U.S. safe-harbour protections.

The inconsistency between U.S. and Canadian law in this area appears to have led the U.S. government to amend its list of negotiating objectives for the North American free-trade agreement's digital trade chapter. Earlier this month, the United States released its updated list of objectives, quietly adding "establish rules that limit [non-intellectual property rights] civil liability of online platforms for third party content, subject to NAFTA countries' rights to adopt non-discriminatory measures for legitimate public policy objectives."

The change may have been motivated by U.S. concerns of Canadian overreach in the online environment, but the benefits of a well-crafted provision would be significant for the Canadian digital economy. The U.S. proposal features ample room for Canada to craft rules that maintain the need for responsible stewardship of online providers without overbroad monitoring or unwarranted takedowns.

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As Canada seeks to attract global players such as Amazon and foster the creation of the next generation of home-grown internet success stories like Shopify, there is a need for a level legal-liability playing field. Indeed, the absence of Canadian safe-harbour rules is a longstanding weakness in the efforts of Innovation, Science and Economic Development Minister Navdeep Bains to build an innovative online economy. The NAFTA digital-trade chapter offers an ideal venue to simultaneously give the U.S. delegation a "win" and for Canada to pursue much-needed domestic digital reforms.

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