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View Nathaniel Erskine-Smith Profile
Lib. (ON)
But is that only because it's covered by the criminal law and there's an exception at paragraph 4 of article 19.17 in reference to the criminal law?
Michael Geist
View Michael Geist Profile
Michael Geist
2020-02-24 11:54
The potential applicability here does still cover illegal content.
I think it's important to recognize that this language didn't come out of nowhere, right? It came out of U.S. legislation—
Michael Geist
View Michael Geist Profile
Michael Geist
2020-02-24 11:54
—known as the CDA, section 230(c). I don't think we have to guess a lot about how that kind of provision can and will be used. There are two decades of jurisprudence in the United States to see precisely how it's used, and it has been used to grant a very broad—
View Nathaniel Erskine-Smith Profile
Lib. (ON)
So if I want a law, for example, that says where there is illegal content at a minimum for, say, advertising counterfeit goods—that seems like an obvious thing that shouldn't happen—so where goods are advertised that are counterfeit and Facebook profits from that ad, or YouTube profits from that ad, I would like them to disgorge that funding or those profits in some fashion. I would like a law in place to ensure that happens and would not be precluded by 230 or precluded by CUSMA.
Michael Geist
View Michael Geist Profile
Michael Geist
2020-02-24 11:55
I think there are a couple of issues there. One is whether we're talking about illegal content to the extent to which you have legislated to render this kind of content illegal, and it sustains a potential Charter challenge, then you're okay on that front.
Bear in mind that you switched quickly to say it's a Facebook ad. Oftentimes what we are talking about here within this context, though, isn't necessarily the advertising that Facebook might be profiting from, but rather the third party content that is posted by users. That's where a lot of the attention has to be focused.
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