New Trade Agreement Extends CDA Section 230 Immunity Abroad
Good news for internet hosts: NAFTA's replacement, the United States-Mexico-Canada Agreement (USMCA), will extend the immunity Congress provided with Section 230 of the Communications Decency Act of 1996 (CDA) into neighboring North American countries.
In the United States, 28 U.S.C. § 230—which provides that online service providers are not considered "publishers" of third-party content posted or shared through their sites—has helped turn the internet into both a robust forum for public speech and the driving economic force behind an industry that increasingly relies on user-generated content.
The Digital Trade section of the USMCA closely tracks Section 230. It provides that the member states shall not "adopt or maintain measures" that create liability for "an interactive computer service as an information content provider … except to the extent the supplier or user has, in whole or in part, created, or developed the information." Article 19.17(2). The agreement also creates immunity for good faith actions taken to limit access to "harmful or objectionable" content, providing a streamlined version of the CDA's "Good Samaritan" provision.
This is promising news in a year of uncertainty around Section 230. In April, the President signed the Allow States and Victims to Fight Online Sex Trafficking Act of 2017 (FOSTA), which removes immunity for web hosts that promote or facilitate child sex-trafficking or prostitution. (See March 29, 2018, Client Alert.) Opponents feared that FOSTA foretold the demise of the CDA's broad immunity. While FOSTA's impact remains to be seen, the potential export of Section 230 is a welcome sign of life.