• by Wendy Davis  @wendyndavis, January 22, 2018

The next version of the North American Free Trade Agreement should include provisions protecting web companies from liability for online reviews, commentary and other material created by users, a coalition of law professors and advocacy groups says.

"NAFTA’s digital trade chapter would benefit from providing liability immunities for intermediaries publishing third party content," the law professors and others say in a new letter to U.S. Trade Rep. Robert Lighthizer, Mexican Secretary of Economy Ildefonso Guajardo, and Canadian Foreign Affairs Minister Chrystia Freeland, who are negotiating an update to the 1993 trade agreement.

The letter, spearheaded by Santa Clara University law professor Eric Goldman, urges the negotiators to incorporate provisions similar to Section 230 of the Communications Decency Act. That U.S. law protects companies like Google, Facebook, Twitter and Yelp from liability for users' posts, including posts that are potentially defamatory.

"Most consumers benefit from Section 230’s immunity many times an hour," the letter states. The letter was signed by 38 professors and 16 organizations, including the Center for Democracy & Technology, Electronic Frontier Foundation, Engine, TechFreedom and Wikimedia Foundation.

They argue that adding protection for web companies into NAFTA will boost online review services. "Online reputation systems require liability immunity to function properly," the professors and groups write. "Otherwise, vendors can easily suppress truthful negative information via litigation threats."

The letter also argues that incorporating protections into NAFTA will enable companies to more easily launch new platforms for third-party content. "Without immunity, new entrants face business-ending liability exposure from day one; and they must make expensive upfront investments to mitigate that risk," the letter argues.

The Silicon Valley lobbying group Internet Association also is pressing for NAFTA provisions that would protect companies from liability for content posted by third parties. That organization said last June that NAFTA "should prohibit governments from making online services liable for third-party content."