Tech companies forcefully pushed for these measures to be included. “It is critical that [the US] seek intermediary protections for intermediaries in a trade agreement,” the Computer and Communications Industry Association said in one submission. Another body, the Computing Technology Industry Association, demanded that: “no party adopts measures that would impose liability as a publisher, creator, or speaker of information on third party distributors or intermediaries of that information.” British industry group techUK also welcomed the proposals.
However, the UK’s trade objectives were less enthusiastic. While not directly contradicting America’s legal protections, objectives published by the Department for International Trade included ensuring “the Government maintains its ability to protect users from emerging online harms”.
Damian Collins, the Conservative MP and former chairman of the digital, culture, media and sport committee, has been campaigning against the protections appearing in any deal. “If such a provision were required in the UK-US trade agreement, it would severely limit our ability to tackle online harms, as we would be prevented from creating legal liabilities, or to tackle companies failing in their duty of care to act against harmful content,” he said in a speech last month.
Mr Collins told The Telegraph: “We would be open to massive legal disputes if we try to enforce any area of domestic law that conflicted with Section 230. We have to expect that the tech companies would tie the Government up in courts for years. This is something that is incompatible; I think we would end up with a system not dissimilar from the regulatory system that Mark Zuckerberg himself advocates… all we could do is check whether they’re following their guidelines.” He added that the proposals could also stop regulators from examining the algorithms the companies use, which would be protected by copyright provisions.
David Henig, director at the European Centre for International Political Economy and a former UK trade negotiator, says that the US has become increasingly forthright about protecting American companies in its trade deals, suggesting it is unlikely to back down. “In the past, the US wasn’t quite so stern on it, now they are. Promoting US companies is a really big part of the kind of the US trade deal agenda.”
Henig says the US is unlikely to back down: the Trump administration has been pushing for similar protections in other trade deals, including the EU and Kenya. Making an exception for the UK would weaken its hand in other discussions.
If British negotiators hope to push back against the proposal, however, they may have more luck through backchannel means. Despite its trade negotiators pushing for the legal protections, Section 230 is on increasingly shaky ground in the US.
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