This report is product of an unprecedented cross-border collaboration on a legal issue of significance to citizens of both countries between the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic (CIPPIC) and the Harvard Law School’s Cyberlaw Clinic, based at Harvard’s Berkman Klein Center for Internet & Society.
The Canada-United States-Mexico Agreement (CUSMA, also known as the new NAFTA) contains provisions modeled on Section 230 of the United States’ Communications Decency Act that protect platforms like Facebook and Google from being held liable for harmful or unlawful content posted by their users. While CUSMA provides for a liability shield quite similar to Section 230, the provisions differ in that CUSMA permits courts to order injunctions requiring platforms to take down content.
Given the ongoing debate in the United States regarding the future of Section 230, the report suggests that the CUSMA’s approach to intermediary liability could serve as a model for amending Section 230, given the balance the CUSMA strikes between addressing online harms and protecting platforms.
The report also outlines how current Canadian intermediary liability laws are inconsistent with the CUSMA, as are some recent proposals advanced in Canada to hold social media companies liable for the content they host. Correspondingly, we recommend that careful consideration be given by federal and provincial parliamentarians to introducing legislation to align Canadian law with the CUSMA, and that clarifies whether Canadian and third-country intermediaries are entitled to the protections provided by the CUSMA.
CIPPIC hopes to expand the coverage of the report to include Mexico and Québec in the near future.
The views and opinions expressed in this publication are those of the authors and do not necessarily reflect the official policy or position of the University of Ottawa, or the Centre for Law, Technology and Society. Errors and opinions remain those of the authors.