WASHINGTON D.C. — TechFreedom joined a letter to the representatives of United States, Canada and Mexico renegotiating the North American Free Trade Agreement (NAFTA), urging them to include protections for online intermediaries from liability for third party online content (other than for copyright and criminal charges), similar to the United States’ “Section 230” (47 U.S.C. § 230).

“Section 230 has allowed American companies to build wildly innovative and socially beneficial online platforms for user content,” said Berin Szóka, President of TechFreedom. “It’s not an accident that all the most popular platforms for sharing user content are run by American companies: without the protections of Section 230, today’s interactive sites would likely never have gotten off the ground, and would offer users far more limited functionality.”

“Without Section 230’s ‘Good Samaritan’ protections, the Internet would be both more sterile and more dangerous,” continued Szóka. “Doing anything to monitor or moderate user content would increase a website’s liability, so necessarily they’d do less of it — and maybe none at all. Encouraging website operators to remain passive and ignorant only helps bad actors, like terrorists and sex traffickers. And holding websites responsible if they don’t take down content someone alleges to be defamatory means they’d have to adjudicate legal disputes at an impossibly large scale — so, in practice, it just creates a heckler’s veto.”

Neither Mexico nor Canada currently has a statute governing intermediary liability (beyond copyright claims). Canada follows the same basic common law principles of publisher liability that Congress recognized, in passing Section 230, simply would not work online — and would, perversely, discourage Good Samaritan policing of user content. As Canadian Internet lawyer Keith Rose explains: “website operators have no general shield from liability for defamation claims over third-party content. The innocent dissemination defence may be available, but it requires a high degree of passivity and ignorance.”

“U.S. trade negotiators have already made Section 230 protections a priority for U.S. trade policy,” concluded Szóka, noting that the U.S. proposed language equivalent to Section 230 in the version of Trade in Services Agreement under negotiation in 2016 among the US, EU and 21 other parties, but the deal has languished under the Trump administration. “There’s no reason such protections shouldn’t be included in NAFTA 2.0. Indeed, since updating NAFTA seems like the only trade deal likely to be completed anytime soon, it’s critical that we not miss this opportunity to establish a baseline for digital trade in future agreements.”

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See our other work on intermediary liability, including:

Our infographic and explainer on CDA Section 230 and immunity for online intermediaries

Tech Policy Podcast #124: Suing a website

Our coalition letter expressing concerns with the Stop Enabling Sex Traffickers Act (SESTA)