The 2020 Mexican USMCA: Practices and Lessons Learned

Mexico’s recent experience with the USMCA clearly demonstrates the importance of multisectoral internet governance. It also clearly shows the need for broad and substantive debates on regulatory matters, particularly when they impact human rights. The Inter-American System requires that States ensure any limitation on freedom of expression be protected and clearly established by law, both formally and substantively. It must also be legitimate and comply with the principles of necessity and proportionality.

. The USMCA negotiations between Mexico, the United States, and Canada, which entered into force on July 1 of this year (1), is the most recent example of a recurring practice: the regulation of human rights on the Internet through international trade agreements. During the negotiation of this treaty, Mexican civil society expressed concerns about the similarity between some of the proposed provisions for the chapters on digital trade and intellectual property and Section 230 of the Communications Decency Act (CDA) and the Digital Millennium Copyright Act (DMCA), respectively. They argued that adopting such provisions would have a regressive impact on the right to freedom of expression. Furthermore, since Mexico lacks specific domestic legislation regulating the liability of intermediaries, the risks of the USMCA imposing top-down regulation on an issue still under debate at the local level were even more evident to the nongovernmental organizations. Although public consultations were held on the negotiations, and officials from the executive branch appeared before the Mexican Congress to explain the status and progress of the negotiations, civil society organizations were not included in those consultations. These types of limitations, posed by the agreement between the United States, Mexico, and Canada, are not new and are repeated in bilateral and multilateral agreements throughout the region. The incorporation of Convention 108, which Argentina signed in 2019 to bring its laws into compliance with personal data protection standards, also follows this same logic. The Treaty in Question and Its Implementation The regulation of intermediary liability in Latin America remains, for the most part, an unresolved issue. With the exception of Brazil, with its Civil Framework (Articles 18–21), none of the other countries has managed to establish a specific regime for intermediary liability regarding third-party content. Instead, in these countries, platforms such as Facebook or Twitter, or search engines such as Google or Bing, are governed by the general principles of civil liability. This is despite legislative efforts in various countries to regulate this issue in accordance with democratic principles. (See Celeup.org, which documents the various legislative proposals in nine countries, including Mexico.) The United States-Mexico-Canada Agreement (USMCA) includes, among other matters, specific definitions and provisions regarding the liability of online intermediaries. In the chapter on Digital Trade, Provision 19.17, which addresses the liability of interactive computer services (defined as “any system or service that provides or enables electronic access by multiple users to a computer server”), generally follows Section 230 of the CDA. The Parties recognize the importance of promoting interactive computer services for the growth of digital trade and limit the liability of intermediaries for third-party content (excluding intellectual property) that they store, process, transmit, distribute, or make available, unless they have developed or created in whole or in part, such content. Furthermore, countries may not impose liability on providers or users for: (a) any action voluntarily taken in good faith by the provider or user to restrict their access to or the availability of material that is accessible or available through the provision or use of interactive computer services and that the provider or user considers harmful or objectionable; or (b) any measure taken to enable or make available technical means that allow an information content provider or other persons to restrict access to material that they consider harmful or objectionable. The article establishes exceptions regarding intellectual property, the application of any criminal law, or measures related to a failure by an information service provider to comply with a specific legal order issued by a competent authority. A three-year transition period is established for the entry into force of Chapter 19.17 in Mexico. In the [Intellectual Property] chapter (http://www.sice.oas.org/Trade/USMCA/Spanish/20ESPDerechosdePropiedadIntelectual.pdf), the liability of intermediaries is governed by provision 20.89, which requires States to ensure the availability of legal remedies for copyright holders. On the one hand, they must create legal incentives to ensure that Internet Service Providers cooperate with rights holders to deter the unauthorized storage and transmission of copyrighted materials. On the other hand, States must shield intermediaries from liability for infringements that they “do not control, initiate, or direct, and that occur through systems or networks controlled or operated by them or on their behalf.” However, specific conditions are established for intermediaries to benefit from these limitations on liability. Among these, they are required to promptly remove or disable access to materials hosted on their systems or networks upon obtaining certain knowledge of a copyright infringement; or through a “notice and takedown” mechanism (_notice and take down), _when the rights holder or a person authorized by the rights holder submits a notice (Article 20.89.3, subsections (a) and (b)). As explained by Gálvez and Sears, unlike other treaties signed in the past by the United States that left it to the discretion of each state to determine the nature of the notification, both the TPP and the USMCA negotiations deliberately included a broad definition that explicitly excludes the requirement for intervention by a judicial or administrative authority. When an ISP removes or disables access to such material in good faith, it shall be exempt from any liability arising therefrom, provided that it takes reasonable measures, either in advance or immediately afterward, to notify the person whose material was removed or disabled. The article makes no mention of ISPs having to prove that a copyright infringement occurred in order to be exempt from liability. The article states that the notice must include information:

• That allows the provider to reasonably identify the infringing work or content;
• That provides the provider with sufficient reason to believe regarding the copyright ownership or authority of the claimant. The Treaty leaves the door open for each State to establish appropriate procedures in its laws or regulations to ensure effective notifications of alleged infringements and effective counter-notifications in cases where material is blocked. Criticism The regulation of intermediaries proposed in the USMCA entails the direct adoption of U.S. standards in this area, including the CDA and the DMCA. Mexican nongovernmental organizations argued that this regulation, in the Mexican context, constitutes a step backward in terms of freedom of expression and access to knowledge. They argued that, in its process of legal harmonization with the USMCA, the Mexican government “rushed” to pass a new copyright law without a sufficient consultation or debate process, which led to the campaign “No Censorship, No Lockdowns that successfully compelled the National Human Rights Commission to file a petition for a declaration of unconstitutionality. The arguments put forward in the petition focused on how the reforms undermine freedom of expression, promote online censorship, and violate due process and judicial guarantees. It is neither uncommon nor exceptional for some free trade agreements—or even bilateral agreements—to include provisions on intermediary liability. These regulations are not uniform and differ depending on whether they align more closely with U.S. standards or European standards. The DMCA model was intentionally exported by the United States through the negotiation of bilateral or multilateral free trade agreements with other countries, particularly in Latin America. (See, for example, Toward a Censorship-Free Internet, Karisma on the Lleras Law or Derechos Digitales). In the U.S. case, this mechanism for exporting regulations is complemented by pressure exerted by the United States through its Annual 301 Report on intellectual property, which classifies countries according to the level of protection they provide for these rights (for example, Argentina is on its Priority Watch List). The Chilean experience illustrates this dynamic: the amendment to Chile’s intellectual property law was guided by the standards agreed upon in the U.S.-Chile Free Trade Agreement; however, it adopted a restrictive approach in its definition of notification and required that it be judicial in nature. Since then, the United States has complained about the failure to implement the agreement’s obligations and has included Chile on its Priority Watch List. Much has been written regarding the safe harbor and notice and takedown mechanisms. _ The most significant criticisms center on the fact that these mechanisms act as incentives for intermediaries to remove more content than necessary to avoid liability, which has a negative impact on freedom of expression. Daphne Keller (Stanford CIS) argues in this regard that when a company adopts a “if in doubt, take it down” policy, it simply reflects the behavior of a rational economic actor seeking to maximize profits and minimize losses (particularly in the case of smaller companies). Furthermore, these mechanisms are criticized for lacking sufficient judicial review and for encouraging platforms to operate with a greater degree of arbitrariness. Among other things, for example, as explained by derechos digitales, they enable “copyfraud,” that is, the “removal—without due process—of works that belong to the public domain, are protected by licenses that allow their reuse, or are not owned by the complainant.” The importance of regulating the liability of intermediaries—given the direct impact this has on the freedom of expression of Internet users—is evident. When such regulations are negotiated by the executive branch without meaningful civil society participation—and, worse still, when pending domestic discussions and debates are settled through a treaty, as in the case of Mexico—the shortcomings of the existing negotiation mechanisms become evident. The Negotiation of International Treaties and Their Specific Characteristics Warnings about the regulatory consequences of signing free trade agreements and their impact on current or potential regulatory powers are not new. Obviously, it is up to each state to define its foreign trade policy as well as the structure necessary to conduct negotiations. However, in recent years, growing demands for transparency from the private sector, civil society, and academia regarding trade negotiations—which are generally conducted by the executive branch—have led states to adopt consultation mechanisms. These mechanisms are primarily aimed at the private sector and, therefore, remain insufficient in many cases; however, they at least allow for the collection of opinions, proposals, and suggestions from non-state actors regarding the negotiations. There are numerous examples of consultation mechanisms worldwide. There is no consensus or uniform practice among states. This is due, in part, to the varying levels of development, negotiating experience, and political will of those conducting such negotiations, as well as to the willingness, time, pressure, technical capacity, and resources that the non-state sector can devote to participating in these negotiations. Nevertheless, broadly speaking, we can classify the existing mechanisms into three categories: those that take place during the pre-negotiation stage, when the advisability of initiating negotiations with a trading partner is assessed; those that come into play during the negotiation itself, in the drafting and negotiation of offers and texts; and, finally, post-negotiation consultation mechanisms, during the agreement’s implementation phase. While the demands for transparency that led to the establishment of private-sector consultation mechanisms were primarily driven by economic interests, in the case of civil society and academia, these demands were more focused on ensuring respect for human rights and promoting greater democratization and good governance in the creation and implementation of international law. Clear examples of this are the demands made by civil society regarding WTO Ministerial Conferences and the negotiation of the TPP or Trans-Pacific Partnership, among others. In fact, these last two sectors are the ones that generally warn of the potential risks of regulating, through trade negotiations, issues that should be part of a broader democratic debate. This is especially true when international agreements can negatively affect the implementation of public policies grounded in international human rights law, as well as their own economic development. Some authors even question the authority attributed in these cases to the diplomatic bodies that negotiate such treaties. Conclusion Mexico’s recent experience with the USMCA clearly demonstrates the importance of multisectoral Internet governance. It also thoroughly illustrates the need for broad and substantive debates on regulatory matters, particularly when they impact human rights. The Inter-American System requires States to ensure that any limitation on freedom of expression is protected and clearly established by law, both in form and substance. It must also be legitimate and comply with the principles of necessity and proportionality. The bodies of the System have been unequivocal in calling for public and open debates prior to the adoption of laws that restrict the right to freedom of expression. They have also been particularly emphatic about the need to include the various stakeholders in Internet governance when proposing regulations. Notwithstanding the clarity of the aforementioned standards, in recent years many States in the region have adopted, for example, the Budapest Convention and adaptation agreements, or have enacted or negotiated laws to be incorporated into the OECD (Colombia, Argentina). In many of these cases, the legal instruments were negotiated behind closed doors and without much local debate, and their provisions included rules that impact and affect the exercise of human rights on the Internet. Monitoring these agreements and negotiations is of fundamental importance. Equally important is the need to demand effective opportunities for participation by civil society and other potential stakeholders in these debates, as the Mexican experience demonstrates. Footnotes: (1) As is widely known, the negotiation of this agreement took place against a backdrop of growing tensions and trade wars on the international stage that also involved the States Parties to the Treaty. By Matías González Photo Credit: Caricaturasparausar.com @cartondetrizas