Big Tech Sneaks Broad Immunities into the NAFTA Agreement

Following year-long negotiations on revisions to the North American Free Trade Agreement (NAFTA), the United States and Mexico announced on Monday, August 27, that the two countries had finally reached a preliminary agreement to replace NAFTA. The negotiated text has not yet been made public, as the United States is still engaging with Canada in an effort to secure Canada’s involvement in the revised agreement. However, the short fact sheet, released by the Office of the United States Trade Representative (USTR), raises some serious concerns for newspapers, while also including positive news for news organizations with regards to fair use.

Starting with the good news, the preliminary agreement does not seem to export U.S.-style “fair use” provisions internationally. These provisions, included in the Copyright Act, allow creators to use copyrighted content without authorization and remuneration if it is considered fair use. While content creators often rely on fair use to create new works, courts have extended the exception’s scope beyond its natural bounds, undermining copyright protection for news content. Excluding fair use provisions from the negotiated agreement is a positive sign, as any treaty text would arguably not accurately reflect the limited scope and nuances of the original exception. Due to the judicial expansion of the exception, newspapers are effectively unable to assert copyright protection against the more harmful and pervasive violations of their rights, and therefore any expansion of the current fair use doctrine at an international level would be further detrimental to the industry.

However, that’s it for the good news. Buried at the bottom of the USTR fact sheet’s Digital Trade subheading is a line indicating that, following extensive lobbying campaigns by the big tech companies, the negotiators seem have inserted a provision granting online service providers broad immunities from civil liability at a time in the U.S. when the lack of responsibility of the platforms remains a challenge to ensuring consumer welfare and quality of content.

In the United States, Section 230 of the Communications Decency Act of 1996 effectively provided immunity from civil and some criminal liability (with some exemptions, including intellectual property law) to all interactive online platforms that publish third-party content – including from claims of defamation, invasion of privacy, and misappropriation.

While some claim that Section 230 has enabled the United States to develop the most vibrant tech sector in the world, the companies that benefit from it today are not small start-ups, but rather large multinational companies such as Google and Facebook. And as recent events have shown, the content these online platforms publish can have grave consequences for our democratic institutions, consumer privacy and the public’s trust in the media. As a result, politicians both in the United States and globally are revisiting this broad immunity for the tech platforms and are considering increasing their responsibility for the content they publish.

While the exact language of the provision in the preliminary agreement is unclear, enshrining Section 230 in NAFTA would enshrine this immunity in United States and globally. The revised NAFTA, if approved by Congress, would also serve as the template for any future trade agreements the United States negotiates with partner countries. As recently as July, the Culture Committee of the UK Parliament released an interim report recommending increased platform liability. Similarly, France and Germany have recently adopted laws tackling fake news. These developments go directly against the attempts to include stronger protections for online platforms in free trade agreements.

Meanwhile, in the United States, Section 230 was last amended just this year to explicitly exempt state and federal sex trafficking laws from its scope. Now that Congress is examining ways to protect our elections, enhance data privacy and prevent the spread of misinformation, including Section 230 in NAFTA would arguably make further changes to Section 230 domestically more sensitive.

Section 230 language has never before been included in a free trade agreement and now is not the time to start doing so. Including such language in NAFTA would protect the status quo globally, solidifying the status of online platforms, while making changes that protect our institutions, citizens, and news publishers more difficult to achieve. The News Media Alliance will therefore continue to advocate for the exclusion of such language from the final agreement in an effort to protect high-quality news content. The next few weeks are critical in this process. While Canada has not yet signed on to the negotiated deal, on Friday, August 31, the Trump Administration informed Congress of its intent to sign the re-negotiated NAFTA agreement with Mexico – and potentially, Canada – at the end of November. The Administration will have to publish the final agreement text within 30 days of the notice to Congress, giving the negotiators just a few weeks to negotiate with Canada and make tweaks to the agreement to ensure Canada’s involvement in the deal.

Johannes Munter is Manager, Public Policy at the News Media Alliance.

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