CDA 230 Goes North American? Examining the Impacts of the USMCA’s Intermediary Liability Provisions in Canada and the United States

22 Pages Posted: 4 Aug 2020

See all articles by Vivek Krishnamurthy

Vivek Krishnamurthy

Harvard University - Berkman Klein Center for Internet & Society; University of Ottawa - Common Law Section; University of Ottawa - Samuelson-Glushko Canadian Internet Policy & Public Interest Clinic (CIPPIC); Harvard University - Carr Center for Human Rights Policy

Jessica Fjeld

Berkman Klein Center for Internet & Society

Date Written: July 7, 2020

Abstract

This report examines the impact of the United States-Mexico-Canada Agreement (USMCA) on the intermediary liability regimes in Canada and the United States.

Article 19.17 of the new USMCA contains provisions modeled on Section 230 of the U.S. Communications Decency Act that protect platforms like Facebook and Google from being held liable for harmful or unlawful content posted by their users. While the liability shield the USMCA provides is quite similar to CDA § 230, the provisions differ in that the USMCA permits courts to order injunctions requiring platforms to take down content.

Given the ongoing debate in the U.S. regarding the future of CDA 230, our report suggests that the USMCA’s approach to intermediary liability could serve as a model for amending CDA 230, given the balance the USMCA strikes between addressing online harms and protecting platforms.

Our report also outlines how current Canadian intermediary liability laws are inconsistent with the USMCA, 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 USMCA, and that clarifies whether Canadian and third-country intermediaries are entitled to the protections provided by the USMCA.

Keywords: USMCA, intermediary liability, platform liability, CDA 230,

Suggested Citation

Krishnamurthy, Vivek and Fjeld, Jessica, CDA 230 Goes North American? Examining the Impacts of the USMCA’s Intermediary Liability Provisions in Canada and the United States (July 7, 2020). Available at SSRN: https://ssrn.com/abstract=3645462 or http://dx.doi.org/10.2139/ssrn.3645462

Vivek Krishnamurthy (Contact Author)

Harvard University - Berkman Klein Center for Internet & Society ( email )

Harvard Law School
23 Everett, 2nd Floor
Cambridge, MA 02138
United States

University of Ottawa - Common Law Section ( email )

57 Louis Pasteur Street
Ottawa, K1N 6N5
Canada

University of Ottawa - Samuelson-Glushko Canadian Internet Policy & Public Interest Clinic (CIPPIC) ( email )

University of Ottawa, Faculty of Law - Common Law
57 Louis Pasteur St.
Ottawa, Ontario K1N 6N5
Canada

Harvard University - Carr Center for Human Rights Policy ( email )

Littauer-G-11G
Cambridge, MA 02138
United States

Jessica Fjeld

Berkman Klein Center for Internet & Society ( email )

Harvard Law School
23 Everett, 2nd Floor
Cambridge, MA 02138
United States

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