Exporting Freedom of Speech through Trade: The Global ‘US Constitution First Amendment Moment’ for Online Platform Liability
The US, in its US-Mexico-Canada Agreement and the US-Japan Digital Trade Agreement, has included a new clause titled ‘Interactive Computer Services’ (ICS). The ICS has the effect of shielding online intermediaries from third-party content liability, mirroring Section 230 of the Communications Decency Act of 1996 (CDA 230). While it appears that the US exported this clause to advance the commercial interests of its social media companies like Facebook and Twitter by minimizing the litigation risks and costs for their overseas business, a closer examination of relevant arrangements indicated mixed results. In our recent paper, I argue that the effects of the ICS differ vastly across these trading partners, depending on its qualifications. Canada’s acceptance of the ICS without qualifications could be advantageous in attracting online businesses and increasing its competitiveness in relation to other countries like the US, in part due to the Canadian common law’s already overly strict handling of defamation. For Mexico and Japan, however, the ICS is not as effective as it appears: Japan has essentially counteracted any potential effects of the ICS by way of a side letter, while Mexico has conditioned its commitments on, among others, the consistency with its constitutional law—in particular, those relating to free speech. Evidently, the immunity offered by the ICS is not as robust as it appears.
This raises an immediate question: why has the US permitted qualifications on the clause? Whilst bargaining power is a potential explanation, it seems more plausible that such an allowance was made because the US understands the potential risks and repercussions that follow if countries reject the ICS. What is at stake here is clear: it extends beyond commercial interests and immunity into freedom of expression. A softer approach, as I argued, may suggest that domestic shareholders are the real target. As the amount of misinformation, disinformation and fake news has increased in recent years, so has the challenges faced by the notion of freedom of speech. Americans are not an exception—there have been various proposals to reform CDA 230 over the past few years. It explains why some US lawmakers have voiced their concerns about including ICS in trade agreements. Incorporating the CDA 230-type clause as a treaty commitment would lock the US into the existing legal framework dealing with online platform liabilities, thus making it problematic to overhaul this controversial regime in the future.
Whilst it is known that major trading powers tend to export their domestic laws through international trade agreements, CDA 230 raises new controversies. It was argued in our recent paper that CDA 230, which provides broad immunity for online platforms against defamation liabilities arising from third-party content, has its legitimacy rooted in the US Constitution’s First Amendment—thus making it potentially unsuitable for the legal frameworks of other countries. It is not just a matter of civil liabilities; instead, it turns on the constitutional order that reflects other jurisdictions’ social, economic, and political traditions. For policymakers, the seemingly innocuous ‘Interactive Computer Services’ title creates the fundamental challenge in balancing free speech against competing interests in the digital age. The US’ approach of prioritizing free speech over competing interests, such as reputation, is not necessarily shared by other countries.
We argue that the ICS should not be globally normalized through its diffusion in trade deals. It is unclear to what extent the CDA 230 clause could emerge as a new global standard, nor is it desirable as a template for future trade agreements. It seems unwise for US trade negotiators to export the ICS in future negotiations while it has attracted so much controversy at home. It is likewise problematic for international partners to accept a clause born from American values deeply rooted in the First Amendment. Each country is entitled to achieve the fundamental right of free speech through its own economic, social, and political pathways towards an optimal balance—and rebalance—against other interests. The clause should be dropped from future trade negotiations while policymakers worldwide grapple with the challenges posed by online platforms and reconfigure their regulatory frameworks in the digital era. Ultimately, it is incompatible with many nations’ legal frameworks as it extends beyond trade into the balance between free speech and other competing social values.
Han-Wei Liu is Senior Lecturer at Monash University, Australia
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