Social Media Expression Act
|Model Bill Info|
|Bill Title||Social Media Expression Act|
|Date Introduced||July 29, 2022|
|Task Forces||Communications and Technology|
Social Media Expression Act
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF [insert state or commonwealth name]
SECTION 1. DEFINITIONS. In this chapter:
(1) “Censor” means to block, ban, remove, deplatform, de-boost, restrict, deny equal access or visibility to, or otherwise discriminate against expression.
(2) “Expression” means any word, music, sound, still or moving image, number, or other perceivable communication.
(3) “Receive,” with respect to an expression, means to read, hear, look at, access, or gain access to the expression.
(4) “Social media platform” means an Internet website or application that is open to the public, allows users to create an account, and whose primary purpose is to enable users to disseminate information to and communicate with other users through the posting of comments, messages, video, images, or other media. The term does not include:
(A) an Internet Service Provider (ISP);
(B) electronic mail; or
(C) an online service, application, or website:
(i) that consists primarily of news, sports, entertainment, or other information content that is not user generated but is preselected by the provider; and
(ii) for which any chat, comments, or interactive functionality is incidental to, directly related to, or dependent on the provision of the content described by Subparagraph (i).
(5) “Unlawful expression” means an expression that is unlawful under the United States Constitution, federal law, the [STATE] Constitution, or the laws of this state, including expression that constitutes a tort under the laws of this state or the United States.
(6) “User” means a person who posts, uploads, transmits, shares, or otherwise publishes or receives content through a social media platform. The term includes a person who has a social media platform account that the social media platform has disabled or locked.
SECTION 2. APPLICABILITY.
(a) This chapter applies only to a user who:
(1) resides in this state;
(2) does business in this state; or
(3) shares or receives content on a social media platform in this state.
(b) This chapter only applies to a social media platform that functionally has more than 50 million active users in the United States in a calendar month.
SECTION 3. CONSTRUCTION. This chapter may not be construed to limit or expand intellectual property rights.
SECTION 4. PUBLIC DISCLOSURES. (a) A social media platform shall, in accordance with this section, publicly disclose accurate information regarding its content management, data management, and business practices, including specific information regarding the manner in which the social media platform:
(1) curates and targets content to users;
(2) places and promotes content, services, and products, including its own content, services, and products;
(3) moderates content;
(4) uses search, ranking, or other algorithms or procedures that determine results on the platform; and
(5) provides users’ performance data on the use of the platform and its products and services.
(b) The disclosure required by Subsection (a) must be sufficient to enable users to make an informed choice regarding the purchase or use of access to or services from the platform.
(c) Trade secrets and commercial or financial information protected from disclosure by federal law is exempt from the disclosure required by Subsection (a).
(d) A social media platform shall publish the disclosure required by Subsection (a) on an Internet website that is easily accessible to the public.
SECTION 5. ACCEPTABLE USE POLICY.
(a) A social media platform shall publish an acceptable use policy in a location that is easily accessible to the user.
(b) A social media platform’s acceptable use policy must:
(1) reasonably inform users about the types of content prohibited on the social media platform;
(2) explain the steps the social media platform will take to ensure content complies with the policy;
(3) explain the means by which users can notify the social media platform of content that potentially violates the acceptable use policy, illegal content, or illegal activity, as provided in Section 6; and
(4) include publication of a biannual transparency report outlining actions taken to enforce the policy.
SECTION 6. COMPLAINT SYSTEM AND PROCEDURES.
(a) A social media platform shall provide an easily accessible complaint system to enable a user to submit a complaint in good faith and track the status of the complaint, including a complaint regarding:
(1) content that potentially violates the social media platform’s acceptable use policy;
(2) illegal content or activity;
(3) a decision made by the social media platform to remove content posted by the user; or
(4) a decision made by the social media platform to suspend, disable, or lock the user’s account or ban the user from the social media platform.
(b) A social media platform that receives notice of illegal content or illegal activity on the social media platform shall make a good faith effort to evaluate the legality of the content or activity within 48 hours of receiving the notice, excluding hours during a Saturday or Sunday and subject to reasonable
exceptions based on concerns about the legitimacy of the notice. If the alleged illegal content or illegal activity suggests that the user who posted the content poses an imminent threat to themselves or others, the social media platform shall immediately notify the appropriate law enforcement agency.
(c) Except as provided by subsection (d), if a social media platform removes content or suspends or bans a user from the platform based on a violation of the platform’s acceptable use policy under Section 5, the social media platform shall, concurrently with the action:
(1) notify the user who posted the content of the removal and explain the reason for the removal, suspension, or ban;
(2) allow the user to appeal the decision; and
(3) provide written notice to the user of:
(A) the determination regarding an appeal requested under Subdivision (2); and
(B) in the case of a reversal of the social media platform’s decision, the reason for the reversal.
(d) A social media platform is not required to provide a user with notice or an opportunity to appeal under Subsection (c) if the social media platform:
(1) is unable to contact the user after taking reasonable steps to make contact;
(2) reported the potentially policy-violating content to law enforcement for investigation; or
(3) knows the potentially policy-violating content relates to an ongoing law enforcement investigation.
SECTION 7. APPEAL PROCEDURES.
If the social media platform receives a user complaint regarding a decision to remove content posted by the user or to suspend or ban the user over potentially policy-violating content, the social medial platform shall, not later than the 14th business day after the date the platform receives the complaint:
(1) review the content;
(2) determine whether the content adheres to the platform’s acceptable use policy;
(3) take appropriate steps based on the determination under Subdivision (2); and
(4) notify the user regarding the determination made under Subdivision (2) and the steps taken under Subdivision (3).
SECTION 8. BIANNUAL TRANSPARENCY REPORT.
(a) As part of a social media platform’s acceptable use policy under Section 5, the social media platform shall publish a biannual transparency report that includes, with respect to the preceding six-month period:
(1) the total number of instances in which the social media platform was alerted to illegal content, illegal activity, or potentially policy-violating content by:
(A) a user complaint;
(B) an employee of or person contracting with the social media platform; or
(C) an internal automated detection tool;
(2) subject to Subsection (b), the number of instances in which the social media platform took action with respect to illegal content, illegal activity, or potentially policy-violating content known to the platform due to the nature of the content as illegal content, illegal activity, or potentially policy-violating content, including:
(A) content removal;
(B) content demonetization;
(C) content deprioritization;
(D) the addition of an assessment to content, such as a “fact check” or other disclaimer regarding the veracity of the content;
(E) account suspension;
(F) account removal; or
(G) any other action taken in accordance with the platform’s acceptable use policy;
(3) the country of the user who provided the content for each instance described by Subdivision (2);
(4) the number of coordinated campaigns, if applicable;
(5) the number of instances in which a user appealed an action taken by the social media platform under Subdivision (2);
(6) the percentage of appeals described by Subdivision (5) that resulted in the restoration of content; and
(7) a description of each tool, practice, action, or technique used in enforcing the acceptable use policy.
(b) The information described by Subsection (a)(2) must be categorized by:
(1) the rule violated; and
(2) the source for the alert of illegal content, illegal activity, or potentially policy-violating content, including:
(A) a government;
(B) a user;
(C) an internal automated detection tool;
(D) coordination with other social media platforms; or
(E) persons employed by or contracting with the platform.
(c) A social media platform shall publish the information described by Subsection (a) with an open license, in a machine-readable and open format, and in a location that is easily accessible to users.
SECTION 9. CENSORSHIP PROHIBITED.
(a) This section only applies to moderation and censorship decisions for which a social media company is claiming protection from liability under 47 U.S.C § 230. Nothing in this section shall prevent a social media platform from prohibiting entire categories of content. However, to the extent that a social media platform allows users to engage in expression regarding certain content, that social media platform may not censor a user, a user’s expression, or a user’s ability to receive the expression of another based on:
(1) the particular viewpoint of the user or another person; or
(2) the particular viewpoint represented in the user’s expression or another person’s expression.
(b) This section may not be construed to prohibit a social media platform from censoring expression that:
(1) the social media platform is specifically authorized to censor by federal law;
(2) is the subject of a referral or request from an organization with the purpose of preventing the sexual exploitation of children and protecting survivors of sexual abuse from ongoing harassment;
(3) directly incites criminal activity or consists of direct threats of violence or illegal activity targeted against a specific identifiable person or group;
(4) is unlawful expression; or
(5) a court of competent jurisdiction has ordered the social media platform to remove.
(c) This section may not be construed to prohibit or restrict a social media platform from authorizing or facilitating a user’s ability to censor specific expression on the user’s platform or page at the request of that user.
(d) This section applies only to expression that is shared or received in this state.
(e) This section applies to the maximum extent permitted by the United States Constitution and the laws of the United States, but no further than the maximum extent permitted by the United States Constitution and the laws of the United States.
SECTION 10. USER REMEDIES.
(a) A user may bring an action against a social media platform that censors the user in violation of Section 9.
(b) If the user proves that the social media platform violated the prohibition on censorship under Section 9 with respect to the user, the user is entitled to recover:
(1) declaratory relief under [insert section of code dealing with declaratory relief], including costs and reasonable and necessary attorney’s fees; and
(2) injunctive relief.
(c) If a social media platform fails to promptly comply with a court order in an action brought under this section, the court shall hold the social medial platform in contempt and shall use all lawful measures to secure immediate compliance with the order, including daily penalties sufficient to secure immediate compliance.
(d) A user may bring an action under this section regardless of whether another court has enjoined the attorney general from enforcing this chapter or declared any provision of this chapter unconstitutional unless that court decision is binding on the court in which the action is brought.
(e) Nonmutual issue preclusion and nonmutual claim preclusion are not defenses to an action brought under this section.
SECTION 11. WAIVER PROHIBITED.
(a) A waiver or purported waiver of the protections provided by this chapter is void as unlawful and against public policy, and a court or arbitrator may not enforce or give effect to the waiver, including an action brought under Section 9, notwithstanding any contract or choice-of-law provision in a contract.
(b) The waiver prohibition described by Subsection (a) is a public-policy limitation on contractual and other waivers of the highest importance and interest to this state and this state is exercising and enforcing this limitation to the full extent permitted by the United States Constitution and [STATE] Constitution.
SECTION 12. LIMITATION ON EFFECT OF CHAPTER. This chapter does not subject a social media platform to damages or other legal remedies to the extent the social media platform is protected from those remedies under federal law.
SECTION 13. ENFORCEMENT ACTION BY ATTORNEY GENERAL.
(a) Any person may notify the attorney general of a violation or potential violation of this chapter by a social media platform.
(b) The attorney general may bring an action against a social media platform to enjoin a violation of this chapter. If the injunction is granted, the attorney general may recover costs incurred in bringing the action, including reasonable attorney’s fees and reasonable investigative costs.
SECTION 14. SEVERABILITY.
(a) Mindful of Leavitt v. Jane L., 518 U.S. 137 (1996), in which in the context of determining the severability of a state statute the United States Supreme Court held that an explicit statement of legislative intent is controlling, it is the intent of the legislature that every provision, section, subsection, sentence, clause, phrase, or word in this Act, and every application of the provisions of this Act, are severable from each other.
(b) If any application of any provision in this Act to any person group of persons or circumstances is found by a court to be invalid or unconstitutional, the remaining applications of that provision to all other persons and circumstances shall be severed and may not be affected. All constitutionally valid applications of this Act shall be severed from any applications that a court finds to be invalid, leaving the valid applications in force, because it is the legislature’s intent and priority that the valid applications be allowed to stand alone.
(c) If any court declares or finds a provision of this Act facially unconstitutional, when discrete applications of that provision can be enforced against a person, group of persons, or circumstances without violating the United States Constitution and [STATE] Constitution, those applications shall be severed from all remaining applications of the provision, and the provision shall be interpreted as if the legislature had enacted a provision limited to the persons, group of persons, or circumstances for which the provision’s application will not violate the United States Constitution and [STATE] Constitution.
(d) The legislature further declares that it would have enacted this Act, and each provision, section, subsection, sentence, clause, phrase, or word, and all constitutional applications of this Act, irrespective of the fact that any provision, section, subsection, sentence, clause, phrase, or word, or applications of this Act, were to be declared unconstitutional.
(e) If any provision of this Act is found by any court to be unconstitutionally vague, the applications of that provision that do not present constitutional vagueness problems shall be severed and remain in force.
(f) No court may decline to enforce the severability requirements of Subsections (a), (b), (c), (d), and (e) of this section on the ground that severance would rewrite the statute or involve the court in legislative or lawmaking activity. A court that declines to enforce or enjoins a state official from enforcing a statutory provision does not rewrite a statute, as the statute continues to contain the same words as before the court’s decision. A judicial injunction or declaration of unconstitutionality:
(1) is nothing more than an edict prohibiting enforcement that may subsequently be vacated by a later court if that court has a different understanding of the requirements of the [STATE] Constitution or United States Constitution;
(2) is not a formal amendment of the language in a statute; and
(3) no more rewrites a statute than a decision by the executive not to enforce a duly enacted statute in a limited and defined set of circumstances.