The transatlantic divide: Intermediary liability, free expression, and the limits of trade harmonization

Publication Type

Journal Article

Publication Date

3-2024

Abstract

Amid escalating apprehensions surrounding content regulation, the USA has discreetly integrated provisions reminiscent of its Communications Decency Act Section 230 (CDA 230) into trade agreements, offering broad immunity. This scholarly analysis critically assesses this manoeuvre by juxtaposing such CDA 230-like provisions against the UK’s established legal framework governing online content and freedom of expression. Utilizing a comparative legal methodology, the paper underscores the pronounced differences between the USA and UK stances on intermediary liability for third-party content, moulded by their unique constitutional foundations and jurisprudential interpretations of free speech rights. The insertion of CDA 230-aligned clauses into trade agreements poses a potential threat to the UK’s nuanced equilibrium between safeguarding free speech and upholding other paramount interests, such as privacy and reputation. An scrutiny of UK defamation statutes and content regulation protocols reveals inherent challenges in transplanting CDA 230 provisions into trade contexts. In summation, the paper ardently supports a diversified approach to online content governance and cautions against standardizing intermediary liability laws via trade agreements, especially between nations with divergent foundational beliefs. It fervently endorses a cross-disciplinary discourse involving both trade and legal specialists to ensure the preservation of free expression while concurrently recognizing the intricacies of crafting universally applicable standards for online platforms and content regulation.

Discipline

International Trade Law | Science and Technology Law

Research Areas

Asian and Comparative Legal Systems

Publication

International Journal of Law and Information Technology

Volume

31

Issue

4

First Page

376

Last Page

398

ISSN

0967-0769

Identifier

10.1093/ijlit/eaae004

Publisher

Oxford University Press

Additional URL

https://doi.org/10.1093/ijlit/eaae004

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