Stiff upper lip
Britain must resist US push to protect tech giants from legal liability during trade talks 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