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Academic and legal professionals in internet law across the US, Canada, and Mexico have co-authored a letter urging their respective trade departments to ensure protection for internet businesses, as the North American Free Trade Agreement (NAFTA) is being renegotiated.
The 55 signatories have addressed the letter, dated January 21, to Ambassador Robert Lighthizer (US), Secretary Ildefonso Guajardo Villarreal (Mexico), and Minister Chrystia Freeland (Canada).
Organisations such as the Institute for IP and Social Justice and New Media Rights, and professionals from the University of Alberta Copyright Office have issued their support.
“When NAFTA was negotiated the internet was an obscure electronic network” but it is now a “significant —and essential—part of our societies and our economies”, the letter said.
The letter requests that the trade negotiators incorporate section 230 of the US Communications Decency Act, enacted in 1996, into the draft of NAFTA’s digital trade chapter. It argues that by incorporating intermediary immunity into the agreement, commerce and trade will be advanced.
Section 230 says that online intermediaries that host third party content cannot be legally responsible for that content, but there are exceptions for IP claims.
The legislation has been “directly responsible for the success of major internet companies” such as Google, Facebook, and Wikipedia, according to the letter. Wikimedia Foundation is a signatory to the letter, as is the Competitive Enterprise Institution.
It claims that “if all North American websites enjoyed protection like section 230”, then “every North American business from the largest giants to the smallest start-ups would be benefitted”.
Chapter 17 of NAFTA is currently dedicated to the protection of IP rights, including copyright, trademarks, and patents. It establishes obligations that all parties provide adequate and effective measures to protect and enforce IP rights, including allowing customs administrators to suspend the release of counterfeit or copyright infringing goods.
Including the liability protections of section 230 in NAFTA would protect websites featuring customer reviews, thereby improving buyer trust and encouraging healthy competition between vendors. The letter states that vendors may currently suppress truthful, but negative, information through fear of legal threats.
Intermediary immunity also allows new online services which rely on third party content to launch with fewer barriers, therefore improving the competition of those markets. Without immunity, “new entrants face business-ending liability” from day one, unless they make “expensive upfront investments to mitigate” the risk.
North American Free Trade Agreement,Lighthizer, Guajardo, Freeland, Section 230, US internet law, internet law reform, intermediary immunity