survived judicial scrutiny. Section 230 immunizes ISPs for many of their users’ actions
including defamation (copyright and criminal activity is excluded): ‘‘No provider or
user of an interactive computer service shall be treated as the publisher or speaker
of any information provided by another information content provider.’’ 60 Moreover,
the First Amendment shields speakers from liability for much speech about public
figures. 61
Canada has no statutory equivalent to the statutory protection for ISPs under CDA
230. However, Canadian case law suggests that ISPs are entitled to a certain degree of
immunity: in June 2004, the Supreme Court of Canada unanimously held that ISPs
cannot be held liable for violations of Canadian copyright law committed by their subscribers. 62 The decision ruled that the act of caching content by an ISP would not make
it liable and that an ISP’s knowledge of potential infringements by subscribers is not
necessarily sufficient to create liability either. 63 In Canada, ISPs are therefore able to escape liability if they prove that they are merely acting as ‘‘conduits.’’ 64 They may, however, face liability as publishers if they exercise editorial control over material. This
situation stands in contrast to the United States, where CDA 230 provides publisher
immunity to ISPs, limited only where the provider or host has acted as an ‘‘information content provider’’ and actually created some or all of the content. 65 An important
caveat to the U.S. immunity is that it does not apply to intellectual property law—
while the Canadian situation exemplified in the case described earlier does provide immunity to ISPs regarding intellectual property matters such as copyright. 66 Overall,
both Canadian and U.S. service providers receive legal protections that favor the protection of free speech online. Canadian ISPs, however, lack the clearly set out statutory
protection that exists in the United States and may feel compelled to take down allegedly defamatory content (e.g., postings to message boards) when threatened with the
possibility of costly lawsuits.
Copyright
U.S. copyright law has evolved more quickly than Canadian law both in addressing the
issue of ISP liability and in encouraging removal of infringing material. The Online
Copyright Limitations of Liability Act, a part of the Digital Millennium Copyright Act
(DMCA) of 1998, 67 gives service providers a ‘‘safe harbor’’ from liability for their users’
copyright infringement provided they implement copyright policies and provides the
legal basis for a notice-and-takedown regime. Where a service provider unknowingly
transmits, caches, retains, or furnishes a link to infringing material by means of an automatic technical process, it is protected from liability so long as it promptly removes
or blocks access to the material upon notice of a claimed infringement. 68 Section 512
(c) of the DMCA 69 provides that ‘‘a service provider shall not be liable for monetary relief, ...,forinjunctive or other equitable relief, for infringement of copyright by reason
United States and Canada Overview
377
including defamation (copyright and criminal activity is excluded): ‘‘No provider or
user of an interactive computer service shall be treated as the publisher or speaker
of any information provided by another information content provider.’’ 60 Moreover,
the First Amendment shields speakers from liability for much speech about public
figures. 61
Canada has no statutory equivalent to the statutory protection for ISPs under CDA
230. However, Canadian case law suggests that ISPs are entitled to a certain degree of
immunity: in June 2004, the Supreme Court of Canada unanimously held that ISPs
cannot be held liable for violations of Canadian copyright law committed by their subscribers. 62 The decision ruled that the act of caching content by an ISP would not make
it liable and that an ISP’s knowledge of potential infringements by subscribers is not
necessarily sufficient to create liability either. 63 In Canada, ISPs are therefore able to escape liability if they prove that they are merely acting as ‘‘conduits.’’ 64 They may, however, face liability as publishers if they exercise editorial control over material. This
situation stands in contrast to the United States, where CDA 230 provides publisher
immunity to ISPs, limited only where the provider or host has acted as an ‘‘information content provider’’ and actually created some or all of the content. 65 An important
caveat to the U.S. immunity is that it does not apply to intellectual property law—
while the Canadian situation exemplified in the case described earlier does provide immunity to ISPs regarding intellectual property matters such as copyright. 66 Overall,
both Canadian and U.S. service providers receive legal protections that favor the protection of free speech online. Canadian ISPs, however, lack the clearly set out statutory
protection that exists in the United States and may feel compelled to take down allegedly defamatory content (e.g., postings to message boards) when threatened with the
possibility of costly lawsuits.
Copyright
U.S. copyright law has evolved more quickly than Canadian law both in addressing the
issue of ISP liability and in encouraging removal of infringing material. The Online
Copyright Limitations of Liability Act, a part of the Digital Millennium Copyright Act
(DMCA) of 1998, 67 gives service providers a ‘‘safe harbor’’ from liability for their users’
copyright infringement provided they implement copyright policies and provides the
legal basis for a notice-and-takedown regime. Where a service provider unknowingly
transmits, caches, retains, or furnishes a link to infringing material by means of an automatic technical process, it is protected from liability so long as it promptly removes
or blocks access to the material upon notice of a claimed infringement. 68 Section 512
(c) of the DMCA 69 provides that ‘‘a service provider shall not be liable for monetary relief, ...,forinjunctive or other equitable relief, for infringement of copyright by reason
United States and Canada Overview
377