June 18, 2019

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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.

Copyright © by Ballard Spahr LLP


About this Author

Jacquelyn Schell, Ballard Spahr Law Firm, New York, Media and Entertainment Litigation Attorney

Jacquelyn N. Schell is an associate in the firm's Litigation Department. She focuses on First Amendment litigation, representing media and non-media clients in matters including defamation, libel, right of publicity, press access, and reporters' privilege. Jacquelyn has also represented clients in commercial litigation, defended against regulatory and criminal claims, and conducted internal investigations.
Jacquelyn previously served as a Special Assistant District Attorney in the Cobb County District Attorney's Office in Georgia, where she prosecuted felony crimes...

Christopher Proczko Federal Civil Rights Lawyer Ballard

Christopher Proczko is a trusted litigator and skilled advocate who protects his clients' interests, both in and out of the courtroom. He has broad experience litigating in state and federal courts and arbitration around the country, handling simple disagreements and complex disputes with the same level of compassion and professionalism.

Known for his reliability and procedural expertise, Christopher guides his clients through disputes with a common sense approach that both advances their unique legal goals and strives to reach a result that makes good business sense. He has represented clients in criminal matters, government investigations, insurance coverage disputes, class-action shareholder disputes, federal civil rights claims, immigration, and business-to-business litigation. Christopher helps every client navigate disputes from the initial complaint through to the final resolution.

Charles Tobin, Ballard Spahr Law Firm, Entertainment Media Litigation Attorney

Charles D. Tobin is a litigator, former journalist, and the Co-Practice Leader of Ballard Spahr's Media and Entertainment Law Group. He defends the media in libel and privacy lawsuits in state and federal trial and appellate courts throughout the country. He conducts prepublication content review and advises clients on subpoenas, access and privilege issues, Freedom of Information Act (FOIA) requests, copyright matters, and First Amendment rights.

Mr. Tobin also represents businesses in matters involving unfair competition, disparagement, and...