Stiff up­per lip

Bri­tain must re­sist US push to pro­tect tech gi­ants from le­gal li­a­bil­ity dur­ing trade talks Mark Schultz

The Daily Telegraph - Business - - Front Page - MARK SCHULTZ

Never mind chlo­ri­nated chicken and NHS con­tracts – rules around social me­dia com­pa­nies are in­creas­ingly a sticking point for Bri­tain’s pur­suit of an am­bi­tious trade agree­ment with the US. The EU’s Court of Jus­tice stuck a span­ner in the works last week when it ripped up a transat­lantic data shar­ing deal, in a blow to tech­nol­ogy gi­ants such as Face­book. The de­ci­sion leaves the UK, seek­ing trade deals with both sides, caught in the mid­dle.

When it comes to the le­gal treat­ment of social me­dia plat­forms, there are other ar­eas of dis­pute. A ma­jor one is the Amer­i­can am­bi­tion to ex­port rules shield­ing on­line gi­ants such as Face­book, YouTube and Twitter from le­gal li­a­bil­ity for ma­te­rial posted on their sites. The US pro­posal is a bad fit for the UK as it vi­o­lates both long-held le­gal tra­di­tions and mod­ern pol­icy goals.

The US wants to ex­port Sec­tion 230 of the Com­mu­ni­ca­tions De­cency Act (CDA 230). Prized by US tech firms, it says, “no provider or user of an in­ter­ac­tive com­puter ser­vice shall be treated as the pub­lisher or speaker of any in­for­ma­tion pro­vided by an­other in­for­ma­tion con­tent provider”.

The law was adopted by the US in 1996, to ease the path for young in­ter­net com­pa­nies. At the time, these com­pa­nies lacked the tech­nol­ogy and re­sources to po­lice posts on on­line fo­rums and dis­cus­sion boards.

Pol­i­cy­mak­ers rea­soned that these fledg­ling in­ter­net com­pa­nies should not be treated like tra­di­tional news­pa­per or magazine pub­lish­ers.

The prob­lem is that the in­ter­net is a medium where al­most ev­ery­thing is ac­com­plished via speech. Not only do web­site users com­mu­ni­cate news and opin­ions, they also speak to of­fer il­le­gal goods, sex­u­ally ha­rass and bully oth­ers, re­ject prospec­tive ten­ants based on race and plan ter­ror­ism.

As a re­sult of im­mu­nity from users’ speech, an on­line com­pany can profit from what users say and do, but avoid le­gal re­spon­si­bil­ity for en­sur­ing users avoid harm­ing oth­ers. CDA 230 is an ex­tra­or­di­nary de­par­ture from tra­di­tional prin­ci­ples shared by US and English law. For hun­dreds of years, English com­mon law has treated one who aids or abets a crime as just as guilty as the one who com­mits the crime. Any ex­cep­tions are rare; ex­empt­ing an en­tire, vast field of hu­man en­deav­our – the in­ter­net – is un­prece­dented.

In the early days of the in­ter­net, busi­nesses spot­ted this op­por­tu­nity, and built em­pires based on host­ing the ac­tiv­i­ties of oth­ers while avoid­ing any re­spon­si­bil­ity for what those oth­ers did. In fact, CDA 230 is part of the rea­son why so many of the in­ter­net’s big­gest names – Face­book, Twitter, eBay, YouTube and even Ama­zon – built their busi­nesses on host­ing the out­put of oth­ers.

Sup­port­ers say, with some jus­ti­fi­ca­tion that CDA 230 shaped the mod­ern in­ter­net. In­deed it has, for both good and ill. But in­fant com­pa­nies of the Nineties grew up fast, be­com­ing some of the world’s big­gest and most pow­er­ful busi­nesses.

The harm of ex­empt­ing on­line com­pa­nies from du­ties im­posed on the rest of us has be­come clear. Fraud, hu­man traf­fick­ing, elec­tion in­ter­fer­ence, hate speech, ter­ror­ism, and other harms have thrived on sites free from ac­count­abil­ity.

On­line busi­nesses can and do use tech­nol­ogy to po­lice their sites to rein in bad ac­tiv­ity to the ex­tent they think it ben­e­fits their bot­tom line. But when some pro­pose greater le­gal du­ties, tech ti­tans plead that their re­sources and tech­no­log­i­cal prow­ess are not up to the task.

Both the US and Bri­tish pub­lic are in­creas­ingly scep­ti­cal, and US law­mak­ers are start­ing to ques­tion CDA 230’s fit­ness for the 21st century.

Re­cently, the US Congress created an ex­cep­tion to CDA 230’s blan­ket im­mu­nity, im­pos­ing a duty to com­bat hu­man traf­fick­ing.

More sig­nif­i­cant is a pledge last month by the US De­part­ment of Jus­tice, that it would seek fur­ther ex­cep­tions to CDA 230 for a host of ac­tiv­i­ties. For some time, US leg­is­la­tors in­clud­ing the Speaker of the House and Demo­crat pres­i­den­tial nom­i­nee Joe Bi­den, have been urg­ing the Trump ad­min­is­tra­tion to drop CDA 230 type pro­vi­sions from trade agree­ments.

Nev­er­the­less, ex­port­ing CDA 230 re­mains a firm part of US trade pol­icy and at the heart of the US govern­ment’s am­bi­tions for its trade agree­ment with the UK – even though such a rule is out of step with English le­gal tra­di­tions, its leg­isla­tive pri­or­i­ties, and 21st century needs.

A re­cent UK govern­ment white pa­per ad­vo­cated a frame­work for tack­ling on­line harms, in­clud­ing im­pos­ing a duty of care to keep users safe. That duty would see firms tak­ing steps to en­sure prod­ucts and ser­vices are safe by de­sign, and deal swiftly with harm­ful con­tent or ac­tiv­ity.

These prin­ci­ples will be fa­mil­iar to any­one who op­er­ates a busi­ness off­line. We all owe a duty not to harm one an­other, tem­pered by what is rea­son­able.

The US ap­proach turns that up­side down, as­sum­ing there is no duty of care, ab­sent a spe­cific ex­cep­tion. The fact that the US govern­ment wants to mod­estly ex­pand the list of ex­cep­tions makes this no less ex­tra­or­di­nary a de­vi­a­tion from the re­spon­si­bil­i­ties the law gen­er­ally im­poses.

The UK ap­proach is sen­si­ble, future-proof and gives the law the flex­i­bil­ity to ex­pand to new tech­nol­ogy and busi­ness mod­els – as it has al­ways done. Re­plac­ing this with an out­dated US regime, in­creas­ingly ques­tioned by its own leg­is­la­tors, would be a mis­take for the UK.

Prof Mark Schultz is Goodyear Tyre & Rub­ber Com­pany Chair in In­tel­lec­tual Property Law, Univer­sity of Akron School of Law, and Se­nior Fel­low with the Geneva Net­work

Joe Bi­den, pres­i­den­tial nom­i­nee wants to drop CDA 230 type pro­vi­sions from deals

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