The past year has been an incredibly active one for Canadian digital law and policy with legislative battles over Bill C-10, controversial consultations on online harms and copyright, important Supreme Court decisions, new digital taxes, and an emerging trade battle with the United States. For this final Law Bytes podcast of 2021, I go solo without a guest to talk about the most significant trends and developments in Canadian digital policy from the past year and to think a bit about what may lie ahead next year.
Post Tagged with: "digital trade"
The BTLR and USMCA, Part One: Why the Broadcast Panel Recommendations Conflict With Canada’s Emerging Trade Obligations
Since the release of the Broadcast and Telecommunications Legislative Review Panel report late last month, I’ve posted on several key issues including an overview of concerns, news regulation, Canadian Heritage Minister Guilbeault’s comments, net neutrality, discoverability claims, consumer costs, and a podcast debate with panel chair Janet Yale. The blog now shifts for the next two days on trade-related concerns arising from the report’s recommendations. This issue is particularly timely since the House of Commons has been debating Bill C-4, the implementation bill for the US-Canada-Mexico (USMCA) Trade Agreement and the government had made treaty implementation one of its top legislative priorities.
The United States-Mexico-Canada Agreement (USMCA) is more than just an updated version of the North American Free Trade Agreement. With the inclusion of a digital trade chapter, the deal sets a new standard for e-commerce that seems likely to proliferate in similar agreements around the world. My Washington Post op-ed notes that negotiators have touted the benefits of addressing modern forms of commerce, but the reality is that the USMCA digital trade chapter raises many concerns, locking in rules that will hamstring online policies for decades by restricting privacy safeguards and hampering efforts to establish new regulation in the digital environment.
Steve Verheul, Canada’s lead NAFTA negotiator, appeared before the Standing Committee on International Trade earlier this week to provide an update on the negotiations. In addition to confirming Canada’s commitment to a cultural exception (Verheul acknowledged that the U.S. “has not reacted positively”), Verheul was asked about the digital trade chapter. He indicated that there has been significant progress on issues such as online consumer protection and privacy. He also touched on two other issues: one a Canadian ask and the other a U.S. priority.
From a Canadian perspective, Verheul said that Canada wants a net neutrality provision included in NAFTA, noting:
Canada’s Missing Internet Provision: Why NAFTA Offers the Chance to Establish Long Overdue Online Speech Safeguards
During the earliest days of the commercial Internet, the United States enacted the Communications Decency Act, legislation designed to address two concerns with the rapidly growing online world: the availability of obscene materials and the liability of Internet services hosting third party content. While the obscenity provisions in the 1996 law were quickly struck down as unconstitutional by the U.S. Supreme Court, the liability rules emerged as a cornerstone of U.S. Internet policy.
The rules, which many regard as the single most important legal protection for free speech on the Internet, establish a safe harbour that ensures online services are not liable for the content posted by their users. My Globe and Mail op-ed notes that over the past two decades, the CDA Section 203(c) provision has been used by every major Internet service – from Google to Amazon to Airbnb – to ensure that courts, not private companies, determine what is lawful and permitted to remain online.