Michael Geist points out that one of the aspects of the son-of-NAFTA deal will be to help Canadians exercise their freedom of speech online by providing a “Safe Harbour” provision similar to the one that US law provides:
Internet free speech is not typically an issue associated with trade agreements, but a somewhat overlooked provision in the newly-minted U.S.-Mexico-Canada Agreement (USMCA) promises to safeguard freedom of expression by encouraging Internet companies to resist pressure to remove content. My Policy Options op-ed notes the USMCA’s Internet safe harbour rule – modelled on U.S. law – remedies a longstanding problem in Canada that left large Internet platforms reluctant to leave third party content such as product reviews, blog posts, and social media commentary online in the face of unsubstantiated complaints.
Once implemented, Internet companies will benefit from assurances they will not face liability for failing to take down third party content or for proactively taking action against content considered harmful or objectionable. While the safe harbour provision does not apply to intellectual property, when combined with the preservation in the deal of the USMCA protects Canada’s notice-and-notice system for copyright, whereby rights holders can file complaints over alleged infringements but there is no takedown procedure for the removal of content. Taken together, the Canadian legal framework will encourage free speech, largely looking to court orders for mandated takedowns of content or good faith efforts by platforms to address harmful content.
The absence of a Canadian safe harbour rule has meant the same companies that require court orders prior to the removal of content for claims originating in the U.S., frequently take down lawful content in Canada based on mere unproven allegations due to fears of legal liability. Further, the absence of safe harbour protections creates a disincentive for both new and established services to use Canada to store data or maintain a local presence.
The Internet safe harbour approach originates from the earliest days of the commercial Internet. In 1996, the United States enacted the Communications Decency Act, legislation designed to address two emerging concerns: the online availability of obscene materials and the liability of Internet services for hosting third party content. The U.S. Supreme Court struck down the obscenity provisions on constitutional grounds, but the safe harbour remained intact and quickly emerged as a cornerstone of U.S. Internet policy.
