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A GOLDEN KEY? Film Fund serves as common link between some of the region’s most promising stories for the screen

What does a story about an Indonesian school girl with big dreams, a tale of a modern day pilgrim searching for a place to call home, and an account of two miners from Vietnam confronting the ghosts of the past, have in common? The answer: All are exciting new feature film projects developed with the support of the MPA APSA Academy Film Fund.

The Fund, a joint initiative of the Motion Picture Association and the Asia Pacific Screen Academy, aims to encourage and empower creative filmmakers. The films they feel inspired to make may be unconventional in style and content, may be about contemporary or historical social issues that don’t fit within the conventions of a mainstream industry, or may be in jeopardy of attracting uninvited censorship or political restraint.  The filmmakers may be located outside their own country’s commercial film and TV industries, working alongside them or within them.

Yuni (2021) (Source: Asia Pacific Screen Awards)

 

An Indonesian project entitled Yuni attracted the attention of the Fund jury in 2018 because it was the work of a strong female director, Kamila Andini, seeking to explore the thoughts and emotions of a teenage schoolgirl faced with the pressure of regimented social structures around her. As the film’s synopsis says, “Yuni realizes that when her dreams get bigger, the world around her gets smaller.” Driven to resist the push from family and friends to accept a domestic role in an arranged marriage, she struggles to find a way of pursuing her own preference for continuing study at an advanced level. The communal constraints that surround her include the threat of a virginity test at her school for any students felt by teachers to be “at risk” of pregnancy. Her complex responses to these tensions are the substance and strength of the project, and the submission felt authentic, sensitive, and empathetic. Kamila Adani was nominated for Best Achievement in Directing in the 2021 Asia Pacific Screen Awards for her work on Yuni, which now begins a Festival career around the world. Toronto is the first and likely many more will follow.

No Land’s Man (2021) (Image courtesy of Mostofa Sawar Farooki)

 

No Land’s Man from Bangladeshi filmmaker Mostofa Sarwar Farooki was similarly convincing as a project from the heart. Essentially a classic picaresque fable about a man’s journey through a turbulent life, the project partly drew on Farooki’s personal experiences to examine the progress of a modern “pilgrim” – in this case, a lone, stateless man who moves from one country to another looking for legal status and a place he can call home. In his identity crisis, he has no certainty about his name, religion, or nationality.

Farooki’s remarkable debut feature, Television (2012), about a rural village where the community leaders ban television, signaled him to be an innovative artist supremely committed to making his films in his own way, in the face of innumerable obstacles.

With No Land’s Man, after receiving the support of the MPA APSA Academy Film Fund in 2014, the project went on to participate in the Asian Project Market at Busan in South Korea and was chosen as the best project at India’s Film Bazaar. After receiving the grant, Farooki spent some months working with Australian producer Graeme Isaac pursuing Australian finance so that he could film an episode of the story in Australia. While the location shoot didn’t happen, an Australian actress, Megan Mitchell, remained in the cast as a young woman who meets the pilgrim in the USA. The film moved forward dramatically when Indian star Nawazuddin Siddiqui made a personal commitment to join the team as lead actor and co-producer: “I thought this is our film. It is as much my film as it is Farooki’s, and it needs to get made,” Siddiqui said. With its personal origins, sense of social relevance, urgency, and bold narrative structure, the project commanded attention from the MPA APSA Academy Film Fund and is set to travel far internationally after its 2021 world premiere at the Busan International Film Festival.

Truong Minh Quý, Bianca Balbuena & Bradley Liew (Source: IFFR)

 

An international life also awaits Viêt And Nam, a film now in pre-production, which received a grant from the Fund in 2020. With a Vietnamese director, Trương Minh Quý, and Filippino producers, Bianca Balbuena and Bradley Liew, the film is already crossing boundaries. Trương’s project signals its uniqueness and commands attention when he describes his narrative as “lying between documentary and fiction, personal and impersonal, drawing on the landscape of his homeland, childhood memories, and the historical context of Vietnam.” The submission radiated a sense of urgency and emotional depth in facing issues of profound social dislocation and alienation, with characters still haunted by memories of the Vietnam War decades earlier, and inspired in part by the appalling death of 39 Vietnamese, who suffocated in a container lorry in England in August 2015.

Việt and Nam are two miners who work deep below ground, struggling between their love for each other and their conflicting desires for their futures. In their journeys, together and apart, they confront “the ghosts of Vietnam’s past and the uncertainty of its present.” Nam helps his mother search for the remains of his father, a soldier in the war, with endless hope but no success.  He decides to leave his mother and Việt and finds an agent who can smuggle him abroad.

The Fund was not alone in identifying the strength of this project. It also attracted a grant from the prestigious Hubert Bals Development Fund in the Netherlands. The film is due to be completed in 2022.

These three films exemplify the strength of the MPA APSA Academy Film Fund in promoting authentic and diverse voices from the Asia-Pacific region, and in engaging with filmmakers in fundamentally practical ways, through finance and through endorsement. To be backed by the Fund can raise a project’s profile simply through the association with the Fund’s long list of prestigious recipients, beginning with an Oscar-winner, A Separation, by Asghar Farhadi, in the Fund’s very first year of operation.

With jurors drawn from all sectors of the industry across the Asia-Pacific region, the grants carry with them networking opportunities. Bonds are created and connections made. The Fund’s goal is to promote independent filmmakers in cutting-edge work and to expand and enhance the potential for creative artists in the film domain. Audiences worldwide are also beneficiaries, both in the short term when the film is first released domestically and overseas, and also in the long-term as the film moves onto new services and continues to circulate. It cannot be underestimated too, that the Fund, through cinema, is documenting the social history and helping to stimulate understanding and awareness of communal and historical complexities in ways that would not otherwise be possible. The goal of empowering the open-ended exchange of ideas and experiences at home and abroad makes this Fund much more than an industry assistance agency.

This article was originally published on the MPA-APAC website.

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Industry Media OTT

FORGING GLOBAL CONNECTIONS FOR AN OPTIMISTIC FILMING FUTURE

Creative First is delighted to present an interaction with Rick Ambros, international media and entertainment executive, consultant and producer (India, China, SE Asia, US, Europe), and Consultant and Executive Producer for Applause Entertainment, India.

The discussion focused on the transformation of the online curated content (OCC) segment driven by platforms such as Netflix, Amazon, Disney+ and cinema industry trends. Rick explained that the emergence of global OCC platforms has created opportunities for local producers to explore innovative content and storytelling formats which were lacking in the Indian media and entertainment industry. Mr. Ambros highlighted that revolutionary changes have taken place in the content creation space in the last five to six years, fuelled by changing audience preferences in addition to their exposure to global content.This has opened new opportunities for producers in terms of partnerships that can be forged between Indian storytellers/producers and international players.

On whether OCC platforms directly compete with traditional TV/ broadcasting, Mr. Ambros mentioned that in most countries, there are more viewers on broadcast than on OCC platforms, however the trend of cord-cutting is catching up fast, globally. An important reason being that the best content from linear TV is being shifted to OCC platforms in many markets and new content is being made by the studios exclusively for online content platforms. In India, he elaborates, apart from the major changes listed above, American streamers like HBO Max, Paramount+, Apple, etc. are working on their India strategy since it is a crucial market for them; and the 100% FDI approved policy is a lucrative draw for them to explore this market. Rick predicts that, in light of these factors, the OCC boom in India is likely to continue and may be serious competition for linear TV.

 

On the benefits of working with film commissions and the value of production and tax incentives, Mr. Ambros stated that producers do consider various tax incentives that are available to them and many films are greenlit on the basis of these. In India, a more stable policy at a state and central level will attract more producers. While already a popular destination with the diversity of locations available, the scope for India to be a more lucrative filming destination is promising with the right incentives in place.

On the subject of theatrical releases, Rick had an optimistic view and highlighted that the theatrical experience will continue to be unique in it’s own offering and will see positive growth. Rick also spoke about various content and business startegies adopted by global OCC providers.

For more insights please view the video.

Categories
Hollywood Industry

“The Matrix Resurrections” Cast Reflects on Legacy of “The Matrix”

“Have you ever had a dream, Neo, that you were so sure is real? What if you were unable to wake from that dream? How would you know the difference between the dream world and the real world?”

You might recall these lines from the original The Matrix, spoken by Morpheus (Laurence Fishburne) to Neo (Keanu Reeves) in the film that changed the game for not only sci-fi films going forward, but for what was possible to depict on screen. The effects alone would have made The Matrix a major moment in film history, but it was the story of a terrifying reality beneath the glossy, workaday dream-world we all believe is real that captured the attention of millions. Lana and Lilly Wachowski’s The Matrix wasn’t just an epic sci-fi blockbuster that revealed “bullet-time” visual effects technology to the world, it was also a deeply felt story about the human mind, the capacity for every individual to break free from the prison of comforting conformity and see the world for what it really is.

Then, of course, there were the iconic performances. Fishburne, Reeves, and Carrie-Anne Moss, as Trinity, were the film’s stars. But you’ll recall, as you watch this new featurette from Warner Bros. on the legacy of The Matrix, just how many great performers populated Lana and Lilly Wachowski’s film. Hugo Weaving was pitch-perfect as the malevolent Agent Smith, but so, too, was Jada Pinkett Smith’s Niobe and the wisecracking Joe Pantoliano as Cypher. “Buckle your seatbelt, Dorothy, because Kansas is going bye-bye,” Cypher says to Neo, and he was right. Only the rest of us were on that trip with Neo, too.

Carrie-Anne, Moss Laurence Fishburne, and Keanu Reeves standing against brick wall in a scene from the film ‘The Matrix Reloaded’, 2003. (Photo by Warner Brothers/Getty Images)

 

In the new featurette, the cast of The Matrix Resurrections reflects on what the original film meant to them. Original and current stars like Reeves and Moss offer their perspective on how the film changed their lives, while newcomers recall reacting to the film the same way you and I did. “I left the movie theater just knowing things were going to be different in my life,” new cast member Eréndira Ibarra says. “You can’t quantify how much it changed the world,” adds Jessica Henwick, who plays Bugs in Resurrections. “The best and most iconic thing I remember is Neo dodging the bullets,” says Yahya Abdul-Mateen II, who has a big role in the upcoming film.

The cast makes the point that elements of The Matrix have become so deeply embedded in our culture you might forget that they sprung from the film in the first place. Whether it’s a reference to the red pill or the blue pill, or someone simply mentioning “a glitch in the Matrix” to describe something weird happening, the original film really did have a massive, lasting impact. This is why there is so much excitement to see what Lana Wachowski has cooking with The Matrix Resurrections.

Check out the featurette below. The Matrix Resurrections hits theaters on December 22.

This article was originally published on The Credits.

Categories
Hollywood Industry

“No Time to Die” DP Linus Sandgren on Daniel Craig’s Epic Sendoff as James Bond

In No Time to Die, Daniel Craig gets two hours and 43 minutes to show James Bond fans what they’ll be missing once he exits his five-movie run as the world’s most enduring British spy. Following Craig’s every step, car chase, and explosion along the way is Swedish DP Linus Sandgren. “It was important in this film to make sure that we bookend Daniel Craig’s chapter of Bond in an exciting way,” says Sandgren. Acclaimed for his Oscar-winning cinematography on La La Land as well as American Hustle and NASA space epic First Man, Sandgren joined director/co-writer Cary Fukunaga, cast and crew on a globe-hopping seven-month production filmed in Norway, Italy, Jamacia, London, Scotland, and the North Atlantic Faroe Islands.

Co-starring Rami Malek, Léa Seydoux and Ralph Fiennes, and Lashana Lynch as the first Black female 007,  No Time to Die offers plenty of spectacle, augmented in some theaters as the first Bond movie to be filmed partially in IMAX. But Sandgren takes just as much pleasure in capturing smaller moments. Speaking from his home in Los Angeles, Sandgren offers his take on the cinematic virtues of location-hopping, the beauty of handheld camera work, and the pleasures of capturing Daniel Craig’s emotional range in all his Bondian glory.

In the best Bond tradition, No Time to Die hops all over the place. How did all these locations impact the cinematography?

In a global adventure like this, locations give you a great opportunity to travel and put the plot into whatever location fits the story, and the cinematography is crucial for the emotions to come through. That’s how I like to think about it. I don’t like to think of cinematography so much technically. It’s about emotions and feelings. Thrills, joy, laughter, humor, you always try to relate the imagery to these emotions.

James Bond (Daniel Craig) and Felix Leiter (Jeffrey Wright) in
NO TIME TO DIE, an EON Productions and Metro-Goldwyn-Mayer Studios film. Credit: Nicola Dove. © 2020 DANJAQ, LLC AND MGM. ALL RIGHTS RESERVED.

 

Another Jame Bond tradition: the big set piece at the beginning usually features 007 in some spectacular action sequence. Here, we open on a mother and daughter in Norway with Bond nowhere in sight. It’s quite a contrast in scenery when Bond then makes his appearance.

We wanted to go from this horrific incident in a cold, icy location where we make you really feel the isolation through the cinematography. And then we cut to [coastal Italian village] Matera, which is hot, sunny, and the complete opposite of the snow. Matera’s this very romantic setting, which we captured by shooting at sunset, through dusk to twilight. Cary was very eager to have the story jump each time to a new place.

Daniel Craig stars as James Bond and Léa Seydoux as Dr. Madeleine Swann in NO TIME TO DIE, an EON Productions and Metro-Goldwyn-Mayer Studios film. Credit: Nicola Dove. © 2021 DANJAQ, LLC AND MGM. ALL RIGHTS RESERVED.

 

Next day it’s the same location but a totally different vibe. How did you achieve that?

The morning starts out very romantic as well, but suddenly changes into the worst location you could be in if you’re being chased because you’re going to hit your head really hard against these hard rocky walls in this location that just a minute ago seemed so romantic. For the chase, the light becomes very bright and harsh scary. We also go from sweeping, picturesque visuals to much more handheld [camera work] which gives us this raw, brutal imagery for the action.

 

Bond’s first mission targets a Cuban nightclub (filmed in Jamaica). What kind of atmosphere did you want to render through your cinematography?

The exotic streets of Cuba we decided to shoot in twilight. Then later at night, they travel out to sea in the boat and we shoot that dark blue, not black night, so you can still have a little bit of light in the sky. Even when something’s monochromatic, it’s always more interesting when there’s color. And a big part of the film’s visual [style] is that we intended it to be colorful.

Rami Malek (Safin) on the set of NO TIME TO DIE, an EON Productions and Metro-Goldwyn-Mayer Studios film. Credit: Nicola Dove. © 2021 DANJAQ, LLC AND MGM. ALL RIGHTS RESERVED.

 

You shot on actual film stock, which is pretty rare these days. How did that choice affect the way you shaped your color palette?

Nothing was forced on the color during post-production. By capturing everything on film stock, the lighting color temperatures we worked with made each location feel distinct and also helped set the mood we were trying to create for that scene.

Ralph Fiennes stars as M and Daniel Craig as James Bond in NO TIME TO DIE, an EON Productions and Metro-Goldwyn-Mayer Studios film. Credit: Nicola Dove. © 2021 DANJAQ, LLC AND MGM. ALL RIGHTS RESERVED.

 

So what you shot is what you got, as opposed to digital, where filmmakers often modify the color in post-production?

Making No Time to Die, my intention is that whatever we shoot in-camera, on set, should come back the next day and that is what the film should look like ever after. I’m disappointed if it does not look the way I lit it and captured it in the camera. But sure, when I shoot digital, like on La La Land for example, you use look-up tables to create a distinct look and then you proof-process the footage to get a smoother, softer contrast. But in this case, we did our tests, shot on film, and processed our film stock in the normal way.

Rami Malek stars as Safin in NO TIME TO DIE, an EON Productions and Metro-Goldwyn-Mayer Studios film. Credit: Christopher Raphael. © 2021 DANJAQ, LLC AND MGM. ALL RIGHTS RESERVED.

 

No Time to Die features a lot of epic wide shots. What format did you use?

We shot anamorphic 35 mm as the base for our story, and then we filmed certain sequences with IMAX cameras. If you see these scenes in an Imax theater, the image opens up below and above your head as a way of giving the audience an additional experience of immersive-ness.

You’ve previously worked with intense actors like Ryan Gosling in La La Land and Christian Bale in American Hustle. Viewed through your lens, what is it that makes Daniel Craig so appealing as a screen presence in this, his final Bond film?

He has such a range. Daniel can be charming and witty but he also has the ability to kill a lot of bad guys. And then he can also be very soft or emotionally sensitive. The thing Daniel brings to the Bond franchise is this depth of emotion, where he’s able to express loss and grief and love. As a cinematographer, I’m always thinking “What is this scene about?” Sometimes it can get so emotional that you almost want to be a little bit behind the actor in certain scenes because you want to be respectful and watch him in a more effective way than if you have him looking right into the camera.

Daniel Craig stars as James Bond in NO TIME TO DIE, an EON Productions and Metro-Goldwyn-Mayer Studios film. Credit: Nicola Dove. © 2021 DANJAQ, LLC AND MGM. ALL RIGHTS RESERVED.

With five Bond movies now under his belt, Daniel Craig at this point probably serves as an all-around creative partner as well as an actor.

Definitely. He’s very much a filmmaker, involved in discussions on set. And as an actor, he’s very professional. Daniel knows where the cameras are, he knows where to face himself to catch the light in his eye to look more heroic.

Yet he never seems self-conscious. When Daniel Craig shifts into fight mode, do you approach the camera work differently from his more intimate scenes?

When Daniel’s in danger, we oftentimes work with handheld cameras. He picks something up. Cut. There’s a gun. Cut. He’s smart, swift, and very effective.

No Time To Die is in theatres on November 8.

This article was originally published on The Credits.

 

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Industry Piracy Uncategorized

There will never be a legal ‘celestial jukebox’ to compete with piracy

For more than twenty years and counting, media piracy apologists have repeated some variation of the argument which says, “People are willing to pay for content as long as it is made conveniently available at a fair price.” And while that may sound reasonable in a Tweet or a sound bite, what it actually implies is something quite unreasonable—namely, that the legal streaming paradigm should compete with pirate services by offering most if not all the world’s media fare on one platform at a “low” all-you-can-view price.

Even if that goal is not quite what people think they mean when they repeat the “willing to pay if…” trope, it is the only logical extension of the argument because that would be the only way in which a legal model could possibly mimic a pirate model. But it’s not going to happen. The “Celestial Jukebox” is untenable in a legal framework, especially for filmed entertainment on a global scale.

A single-stream distribution model that would function like one of the pirate subscription services is not economically viable; it would not be achievable without overturning antitrust laws globally; and it would not be desirable because such a monolithic regime would only stifle the diversity of material being produced.

Many viewers perhaps fail to appreciate that we are currently enjoying a golden age in motion picture entertainment. In fact, there has never been a period offering a more diverse range of material for our many screens.

The multi-platform producer/distributor phenomenon enabled by streaming technology obviated the demand to satisfy median viewer tastes where access was limited to a handful of linear, broadcast TV networks. Instead, models like Netflix and Prime have fostered new opportunities to take creative risks in both style and substance, and by contrast, the desire for a single source “jukebox” is culturally regressive because it would render all that experimentation economically untenable. Even if it were legal.

Antitrust laws would prohibit, for instance, the Hollywood studios from collaborating on a single-platform distribution system. And that’s a good thing because, in case anyone hasn’t noticed, network effects in online markets produce monopolies. And it is folly to wish for more consolidation across all media industries.

Shifting the competition paradigm from a network subscription model to one in which each title competes for a share of a combined subscription pool would lead to greater reliance on data by the largest entities to the detriment of smaller producers.

This is not to ignore or underestimate the existing power of the major producers (including Netflix and Prime) relative to independent creators, but a shift toward distribution consolidation and greater reliance on data processing would only amplify those disparities.

In 2018, indie music distributor John Svanberg wrote the following about data-driven perspectives in the Spotify model: “With tireless data mining, the streaming services and major labels become more risk averse. The major labels use streams and social media clout as hard currency in their scouting process in order to make as safe bets as possible, which arguably leads to more innovative music being overlooked due to its out-of-comfort-zone nature.”

Yet, paradoxically, some consumers and pundits suggest that content and network diversity itself is a reason to choose piracy as an alternative. As Michael Beausoleil wrote in a February 2021 blog describing consumer trends:

Too many options leads to frustration. Too much frustration leads to piracy. Yes, the number of streaming options is allowing piracy to gain in popularity. A recent study found that 70% of people believe there are too many streaming options and over 85% feel streaming is getting too expensive. Stealing content certainly isn’t too expensive, unless you get hit with a hefty fine.

Beausoleil does not advocate piracy per se, and his portrayal of consumer frustration, often referred to as “subscription fatigue,” does hit a nerve. I have several subscriptions myself and not nearly enough time to watch everything of potential interest. So, why not get one of those cheap TV boxes, download an app, and pay a lower monthly subscription fee to a pirate operation? I could access all the programming I currently get, plus quite a bit more, while paying less every year.

So, why not do it? For me, the answers to that question are myriad—even without the risk of fines—but it is clear that piracy is still perceived by millions of consumers around the world as a harmless option.

To date, studies indicate that many viewers are not deterred from piracy by the fact that they have a 30% chance of infecting their networks with malware. Neither are they put off by the consideration that media piracy supports an array of other criminal enterprises including identity theft, privacy invasions, and even acts of terrorism. And few consumers have ever been persuaded by evidence that piracy really does cause financial harm to many creators of works.

Further, it is notable that even though legal music streaming comes close to providing an all-in-one “jukebox” experience, these services have not yielded a consistent reduction in pirate habits among consumers.

Rolling Stone reported that during the COVID-19 shutdowns, there was a spike in “old school” download piracy of music, and Music Business Worldwide reported that in pre-COVID years between 2016 and 2019, the UK saw stream ripping of music increase by 1390%.

So, whatever rationales explain the ebb and flow of traffic to pirate alternatives, it seems clear that the existence of the “jukebox” itself is not sufficient to maintain constant ebb.

Understandably, when the consumer views streaming technology in isolation, the idea of a single platform seems attainable. The legal producer/distributors could, as a purely technical matter, approximate what the pirates are doing. But even if the financial model could sustain anything close to the spectrum of material we currently have available, a pirate model could never be replicated in a free market—let alone among competing markets worldwide—without extraordinary levels of regulatory overreach.

A subscription-based pirate streaming app accesses stolen material which is stored on servers operating illegally around the world, and it distributes that content without paying fees to any producers of the work.[1]

Thus, to imitate pirate-like access in a system that actually pays the people who make movies and TV shows would require sweeping government mandates and international agreements that overturn a constellation of legal regimes, including abrogating antitrust laws, for the sole purpose of bringing all motion picture distribution into a monolithic, worldwide streaming system.

Even if that were to happen (and it will not), there is no reason to assume that such a radical approach would provide viewers with a better experience offering the same scope and quality of programming that is available today. On the contrary, homogenized, state-regulated models tend to produce homogenized, state-regulated products. And still, piracy would persist because the pirate who pays zero for the content it distributes can still turn a profit, even if the new “jukebox” were to cut into some margin of its market share.

In terms of overall convenience, interfaces like Prime and AppleTV come pretty close to providing a single source experience because they enable search across all titles on all the networks available through those portals. In that vein, we may see new bundling options offered through ISPs et al in coming years, but it is unrealistic to expect that we will eventually pay one fee into a single, legal, worldwide streaming service.

So, if the consumers currently pirating are waiting for the Celestial Jukebox before they are willing to abandon piracy, then it is fair to say that those consumers are not going to abandon piracy. As such, efforts to mitigate piracy through law enforcement should come as no surprise to anyone.

This article was originally published on Content Café.

Categories
Copyright Industry

Thank You Professor! “Explaining” Section 230 to Canadians

Unabashed booster of—and apologist for—Section 230 of the 1996 Communications Decency Act (CDA), Eric Goldman, recently published an encomiumto help Canadians understand a crucial US law that’s become a flashpoint for heated discussions” (according to the introduction to Goldman’s article distributed by the Santa Clara University School of Law). It was initially released through the Centre for International Governance Innovation (CIGI), a prominent Canadian think-tank at the University of Waterloo. Goldman is Associate Dean and Co-Director of the High Tech Law Institute at the university, which is located in the heart of Silicon Valley). Thanks to Goldman, we poor benighted Canadians can finally begin to fully comprehend how fortunate we are that the new NAFTA (USMCA, called CUSMA in Canada) requires each country—that is the US, Canada and Mexico—to maintain legal rules that, in Goldman’s words, “resemble Section 230”. That provision in CUSMA is Article 19.17. More on the CUSMA treaty language below. But first….

What is Section 230?

Section 230 of the CDA provides that internet intermediaries (internet platforms, websites, social media services) are not liable in civil law for content posted by users. The law was originally passed in order to provide platforms with the means to control illegal or harmful content. As I wrote in an earlier blog post (“Section 230 is Dangerous–Keep it Out of Trade Negotiations”), the problem arose because an online website, Prodigy (no longer in existence) was successfully sued because it had not moderated an online posting put up by a user that allegedly defamed the plaintiff. The court considered that because Prodigy had the ability to moderate the content and did so on occasion, (but not in this case), it was a “publisher” (like a newspaper) and was thus liable for defamation. On the other hand, other websites that made absolutely no attempt to moderate content on their platforms, whether the content was objectionable or not, were considered “distributors” and were off the hook. There was thus no incentive for online platforms to lift a finger to remove obscene, defamatory or content that would be objectionable to children, one of the early concerns about the spread of online content.

The solution was Section 230, which provided, in the words of (now Senator) Rod Wyden, one of its architects, both a sword and a shield. The sword was the ability to take down objectionable content; the shield was immunity from prosecution for doing so. However, over the years its intent has become badly distorted through a series of rulings by various US courts to the point where today the legislation is interpreted as a blanket exemption from responsibility for digital platforms for any content posted by users.

Abuses enabled by Section 230

The misapplication of Section 230 is largely responsible for a general lack of accountability on the part of internet intermediaries for any content that they host, distribute or enable, allowing them to refuse to take action against user-generated abuses. This has led to a litany of abuses without legal remedy against the platforms that turn a blind eye to, enable or even promote, harmful content such as sexual exploitation of children, illegal gambling, false and harmful information, revenge porn, hate speech and so on. It is so wide-sweeping that it has allowed services like AirBNB to thumb its nose at municipalities seeking to enforce bylaws against temporary rentals because the illegal listings were posted by users. (There are limited exceptions to platform immunity under Section 230, namely copyright infringement and, since passage of the SESTA/FOSTA legislationin 2018, sex trafficking, a carve out vigorously opposed by most of Silicon Valley).

Tech platforms love Section 230, as do those who use the content to abuse others, promote illegal activities or spread conspiracy theories. Responsible content producers would like to see some accountability on the part of the platforms. Governments too are grappling with the issue of how to prevent the internet from becoming a law-free zone and to hold businesses that profit from user-generated content to account for the content they distribute and promote.

Because of the many abuses, Section 230 has come under increasing scrutiny in the US. Ironically, when it came under attack by the Trump Administration, it was not because of lack of content moderation by the platforms, but rather because they had—finally and under extreme provocation owing to the proclivity of Trump and his supporters to stretch the truth—exercised some control over the content propagated through their services. This infuriated Trump supporters who accused the platforms of political bias and threatened to bring changes to Section 230. As I commented at the time, (“Reforming Section 230 is the Right Idea—But Not When Done in the Wrong Way for the Wrong Reasons”),

Trump has decided to use Section 230 in order to take personal revenge on Twitter, not to reform it or to address the fundamental issues inherent in the abuse of its immunity provisions by internet intermediaries who have used it to avoid taking down clearly harmful content. By making this allegedly about “silencing conservative voices”, Trump has in effect hijacked the issue of Section 230 reform.”

Of course it didn’t happen, and for several months now we have all been spared the daily torrent of personal, misspelled, vindictive and inaccurate tweets from the former president. For now, Section 230 in the US remains unchanged.

Goldman’s “Five Things to Know”

However, Goldman and his Canadian fellow-cyberlibertarians such as Michael Geist at the University of Ottawa are big fans of Section 230. During the CUSMA negotiations, Geist joined with a number of American academics to write a letter to the chief trade negotiators of the three countries urging the inclusion of a Section 230 provision in the Agreement. He also publicly urged Canadian negotiators to cave in and give the US “a win” on this point. For Goldman and Geist and others of their ilk, Section 230 is the foundation of the internet, enabling free speech, competition, innovation, democracy and more. In his panegyric to Section 230, written for Canadians, Goldman cited “Five Things to know about Section 230”. These are;

  1. Internet Exceptionalism and Section 230
  2. Section 230 Enhances the First Amendment
  3. Section 230 Enhances Competition
  4. Section 230 is the Law in Canada (But Not Really)
  5. Gutting Section 230 Won’t Make the Internet Better.

Let’s examine these assertions and deconstruct the arguments just a bit.

Internet Exceptionalism

With regard to internet exceptionalism, Goldman argues that although the internet is treated differently from and more favourably than other media, Congress got it right when it passed Section 230. He is happy to see the laws governing libel, defamation, hate speech and the other checks and balances that society has imposed on those who are granted the privilege to publish and disseminate information suspended when it comes to the internet. It all seems to hearken back to John Perry Barlow’s 1996 “Declaration of the Independence of Cyberspace”, the mantra of the Electronic Freedom Foundation, a collection of bilious assertions that the internet is beyond the regulations of governments and not subject to national laws.

The First Amendment

Does Section 230 enhance the First Amendment, the “free speech” provision in the Constitution of the United States? First, we have to ask, “does the First Amendment put any limits on free speech?”  The answer is, “of course it does.” The First Amendment does not protect a number of forms of speech, such as obscenity, defamation, perjury, blackmail, incitement to unlawful action, and true threats. The courts have an important role in enforcing these reasonable limitations, but according to Goldman, Section 230 contains “important procedural advantages” that allow courts to dismiss lawsuits over third party lawsuits quickly and relatively cheaply. Put another way, Section 230 hobbles the courts from exercising their responsibility to ensure that free speech is exercised in a way that does not harm others.

Section 230 and Internet Competition

Does Section 230 enhance competition? In Goldman’s upside-down world it does because it keeps the door open to new entrants who don’t have to worry about investing resources in anything as wasteful as content moderation. And we have the proof that this policy increases competition, right? I mean, look at the robust competition that Facebook and Google have to deal with. Or did I miss something?

Is Section 230 the Law in Canada?

According to Goldman, Section 230 is sort of the law in Canada. This is because the new NAFTA (which I will call USMCA/CUSMA hereafter) contains Article 19.17 that says, in part;

“…no Party shall adopt or maintain measures that treat a supplier or user of an interactive computer service as an information content provider in determining liability for harms related to information stored, processed, transmitted, distributed, or made available by the service, except to the extent the supplier or user has, in whole or in part, created, or developed the information”.

According to Goldman, “when Canada ratified CUSMA it committed to providing Section 230-like immunity against internet service liability for third party content”.

However, in USMCA/CUSMA there is an important footnote that reads;

a Party may comply with this Article (19.17) through its laws, regulations or application of existing legal doctrines as applied through judicial decisions”.

In other words, Canadian case law will continue to apply and there is no explicit requirement to create safe harbours in Canada for interactive service providers under this provision. I discussed this in detail at the time in a blog posting labelled “Did Canada get “Section 230” Shoved Down its Throat in the USMCA?”

Goldman argues that Section 230 is the law in Canada but, with respect, that is a highly debatable claim. It’s a brave move for a non-legal practitioner to challenge a Dean of Law at a prominent university on a point of law but even little ol’me knows that a law is not a law unless it has been enacted into legislation. In Canada that is done by an Act of Parliament. True, Canada ratified the USMCA/CUSMA and, as part of the process of so doing, introduced a package of legislative amendments (Canada–United States–Mexico Agreement Implementation Act) to effect changes to various Canadian laws as required by the CUSMA treaty. For example, as part of this legislative package, there were amendments to a variety of statutes ranging from the Fertilizers Act to the Copyright Act and Special Import Measures Act to the Customs Tariff.  But were there any legislative amendments related to Article 19.17 of CUSMA? There were not. There is no new law in Canada establishing Section 230-like immunities for internet platforms—thankfully.  Secondary liability continues to apply in Canada as I discussed in greater detail in here (Will Article 19.17 of the USMCA/CUSMA Influence Canadian Court Proceedings? (The Long—or Short?—Arm of Section 230).

Canada’s “commitment” in the CUSMA was carefully worded, preserving maximum flexibility for Canadian legislators and legal practitioners. I like to think that this was not an accident but by design and is a credit to the Canadian negotiating team who resisted misplaced US demands to “sign on” to Section 230.

Will Changing (“Gutting”) Section 230 Improve the internet?

Goldman argues that removing the dangerous parts of Section 230 will not improve the internet. In his view, since people have been nasty to each other for centuries, changing Section 230 to put the onus on the platforms that disseminate this personal bile won’t change anything. Yet because of the ugly side of society, we have laws to restrain this kind of behaviour in the offline world. We have laws to protect innocent victims. We impose reasonable restraints on unfettered freedom of expression and dissemination of libellous, defamatory and obscene materials everywhere—except on the internet. Goldman would like to keep it that way. He states that “Section 230 reform will accelerate the end of the Web 2.0 era”. This, apparently, will lead to a predomination of “privileged voices” and will exclude “niche non-majoritarian interests” (like those people who spread misinformation, conspiracy theories and indulge in vile personal attacks). So, yes, Professor, changing Section 230 will improve discourse on the internet.

Section 230 in the US

Apart from the attacks on Section 230 by Donald Trump and his acolytes (because the platforms finally exercised a modicum of content moderation), there have been wide criticisms of this legislation because of how it has enabled online abuse. In fact, it almost didn’t make it into the USMCA, since Nancy Pelosi and the Democrats finally woke up to what they were supporting. Pelosi tried to get the Trump Administration to drop Article 19.17 as part of the last-minute deal-making with Congress to get approval of the Agreement, but it was too late in the process. However, the Democrats did succeed in getting a statement from the hi-tech industry acknowledging that inclusion of Article 19.17 did not prevent the US from amending Section 230 in future. Advocates of Section 230 were hoping that its inclusion in the USMCA meant that it would be “baked in” forever and could not be touched by Congress. Given the tepid support in Congress for Section 230, Goldman is right to conclude that even if Canada did not abide by Article 19.17 by passing future legislation that negated it, the US would be most unlikely to object. In fact, he admitted as much in a podcast with Michael Geist that I wrote about earlier this year when he said, with respect to Congressional intentions to modify Section 230 despite Article 19.17 of the USMCA;

“Congress will absolutely blast forward with efforts to tinker with Section 230 even if that would also contravene the USMCA…I don’t know who really plans to abide by it, and if no-one plans to abide by it, I don’t understand what the point was”.

The Future of Section 230

How true. So why the primer on Section 230 just for Canadians? It is not part of the corpus of Canadian law, it is an outdated provision that is in serious need of revision in its homeland, the US, and it is not going to constrain the Canadian government from holding internet platforms responsible for online harms that they distribute if they fail to takedown such material when notified. Eric Goldman, Michael Geist and their friends in the Electronic Frontier Foundation (EFF) can continue to beat the Section 230 drum, but that drumbeat is sounding increasingly hollow, in Canada as in the US. Let Section 230 stay where it is in Canada, effectively buried.

This article was originally published on Hugh Stephens Blog.