'Wild West' of online hate could result from NAFTA replacement, associate law prof warns

The NAFTA-replacing trade agreement that was recently signed could open the door to online hate speech and revenge porn because companies like Facebook and Google will no longer be held liable for that content, a Calgary law professor warns.

Provision in USMCA based on U.S. free speech, not Canada’s more nuanced freedom of expression

Many of the provisions of U.S.-Mexico-Canada Agreement could go into effect late next year. (The Associated Press/Shutterstock)

The NAFTA-replacing trade agreement that was recently signed could open the door to the Wild West of online hate speech and revenge porn because companies like Facebook and Google will no longer be held liable for that content, a Calgary law professor warns.

Many of the provisions of the U.S.-Mexico-Canada Agreement (USMCA) could go into effect late next year.

University of Calgary associate law professor Emily Laidlaw shared her concerns with The Homestretch about a provision in the agreement modelled after a 22-year-old U.S. law that varies a great deal from existing Canadian laws.

This interview has been edited and paraphrased for clarity and length. You can listen to the complete interview here.

Emily Laidlaw is an associate law professor at the University of Calgary. (Submitted by Emily Laidlaw)

Q: How does this change the rules in Canada?

A: Up until now if you were dealing with defamation content, reputation-damaging lies that might be posted online, it was a "notice and take down" regime a lot like in Europe.

A user could complain to the company that they might be hosting unlawful content. They would have an obligation to assess it and potentially take it down and if they didn't do it, they risk liability.

That is not going to be the case any longer.

Q: What is this new provision modelled after?

A: It is modelled after Section 230 of the Communications Decency Act in the United States from 1996.

It effectively immunizes from liability any of these tech companies for the content they host.

Anything that is privacy-invasive, or potentially revenge pornography or defamation or hate speech, the Facebooks and the Googles of the world didn't risk liability for user-posted content.

There were some reasons for that. We can say that helps for the kind of free speech space we see online today.

The whole point was to encourage corporate responsibility but it is questionable whether it has done that.

Q: That law came into effect more than 20 years ago and a lot has changed since then, so is that provision still relevant and applicable?

A: Some would argue it is, but I disagree with that perspective.

It has some benefits. It certainly encourages freedom of expression. But we have learned a lot in the last 20 years. The internet has become a much more interactive space and there has been a lot of misery produced there.

There is a whole host of online abuse and so there are a lot more interesting conversations happening now about, "Well, maybe the Facebooks and Googles shouldn't necessarily be liable for that content but they have some responsibility."

The effect of this new provision in the new agreement is that we can't tackle that in the way we want to in Canada. We can't impose this sort of responsibility on these companies, whatever that is.

Q: Why would Canada agree to this?

A: I can't really speculate.

I know that Section 230 is key to digital policymaking in the United States.

It is seen as core to protecting these technology companies so I would imagine this was advocated for on behalf of the Americans, but I just don't see it as workable in a Canadian context.

Q: Why is that?

A: I don't think we balance free expression against other rights the same way they do in the United States.

Section 230 is not the First Amendment but it certainly reflects First Amendment values. Free speech is kind of a trump in the U.S. against other rights. That's not the way it works in Canada.

Freedom of expression certainly has tremendous constitutional value but we weigh it against other rights, like the right to privacy, the right to reputation.

I don't think this trade provision reflects the way we balance those rights.

Q: What does this mean for companies and individuals going forward here in Canada?

A: Who knows what the end result of this is going to be. But if we assume it goes ahead exactly as it is, then any of the tech companies in Canada would effectively have no obligation that they don't impose on themselves. They are going to be left to self-regulate.

An individual can make a complaint and hope that they might take down that content but it would be solely based on the terms that company creates: how they handle hate speech, how they handle defamatory content.

Intellectual property is a whole separate matter, so I am just talking about online abuse issues.

Q: Are there any provisions for Canada to impose regulations of its own on Canadian companies or is it just going to be the Wild West when it comes to comments?

A: I think there is a risk that it's going to be the Wild West.

I think it's going to come down to how the word "liability" is interpreted because it says you can't impose liability on a company.

Whether there is some room to perhaps impose action requirements on a company — you are going to have to do certain things, you are going to have to pass on notices, assess content, report on what …terms of use you are implementing — there might be room for that but at the moment it is unclear.

Q: Are there upsides to this change?

A: The hope is that companies are protected in being able to deal with the content the way they think they should, but I am really disappointed to see this provision introduced to Canada.

I think Section 230 is now an outlier even though it had an important role to play.

Certainly no other Western countries have a similar provision so I find it's a bit strange that it's been introduced now to Canada.

Q: Is this a slippery slope?

A: I don't think that's necessarily going to be the case because we still have strong intellectual property provisions. We have still protected our "notice and notice" system for copyright in Canada, which is very different than the United States. So I think this change might be isolated to these particular provisions we've talked about, but I guess only time will tell.

With files from The Homestretch


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