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AN ACT relating to consumer protection. 1
Be it enacted by the General Assembly of the Commonwealth of Kentucky: 2
SECTION 1. A NEW SECTION OF KRS CHAPTER 117 IS CREATED TO 3
READ AS FOLLOWS: 4
(1) As used in this section: 5
(a) "Candidate" has the same meaning as in Section 2 of this Act; 6
(b) "Deplatform" has the same meaning as in Section 2 of this Act; 7
(c) "Social media platform" has the same meaning as in Section 2 of this Act; 8
and 9
(d) "User" has the same meaning as in Section 2 of this Act. 10
(2) A social media platform shall not willfully deplatform a candidate for office who 11
is known by the social media platform to be a candidate, beginning on the date of 12
qualification as a candidate and ending on the date of the election or the date the 13
candidate ceases to be a candidate. A social media platform shall provide each 14
user a method by which the user may be identified as a qualified candidate and 15
which provides sufficient information to allow the social media platform to 16
confirm the user’s qualification by reviewing the Web site of the State Board of 17
Elections or the Web site of the applicable county clerk. 18
(3) Upon a finding by the State Board of Elections of a violation of subsection (2) of 19
this section, the social media platform shall be fined two hundred and fifty 20
thousand dollars ($250,000) per day for a candidate for statewide office and 21
twenty-five thousand dollars ($25,000) per day for a candidate for other offices. 22
(4) This section shall only be enforced to the extent not inconsistent with applicable 23
state or federal law. 24
(5) The Attorney General, or his or her designee, shall enforce the provisions of this 25
section. 26
SECTION 2. A NEW SECTION OF KRS CHAPTER 367 IS CREATED TO 27 UNOFFICIAL COPY 22 RS BR 144
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READ AS FOLLOWS: 1
(1) As used in this section and Section 3 of this Act: 2
(a) "Affiliate" means: 3
1. A predecessor or successor of a person convicted of or held civilly 4
liable for an antitrust violation; 5
2. An entity under the control of any natural person who is active in the 6
management of the entity that has been convicted of or held civilly 7
liable for an antitrust violation, including but not limited to those 8
officers, directors, executives, partners, shareholders, employees, 9
members, and agents who are active in the management of an 10
affiliate; 11
3. A person or entity possessing enough ownership of shares to constitute 12
a controlling interest in another person or entity, or a pooling of 13
equipment, income, or a combination among persons or entities when 14
not for fair market value under an arm's length agreement; or 15
4. A person who knowingly enters into a joint venture with a person who 16
has violated an antitrust law during the preceding thirty-six (36) 17
months; 18
(b) "Algorithm" means a mathematical set of rules that specifies how a group 19
of data behaves and that assists in ranking search results and maintaining 20
order or that is used in sorting or ranking content or material based on 21
relevancy or other factors instead of using published time or chronological 22
order of such content or material; 23
(c) "Antitrust violation" means any failure to comply with a state or federal 24
antitrust law as determined in a civil or criminal proceeding brought by the 25
Attorney General, a state attorney, a similar body or agency of another 26
state, the Federal Trade Commission, or the United States Department of 27 UNOFFICIAL COPY 22 RS BR 144
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Justice; 1
(d) "Antitrust violator vendor list" means a list required to be kept by the 2
Department of Law pursuant to Section 3 of this Act; 3
(e) "Candidate" means any person that is actively seeking a public office at a 4
local or statewide level; 5
(f) "Censor" includes any action taken by a social media platform to delete, 6
regulate, restrict, edit, alter, inhibit the publication or republication of, 7
suspend a right to post, remove, or post an addendum to any content or 8
material posted by a user. The term also includes actions to inhibit the 9
ability of a user to be viewable by or to interact with another user of the 10
social media platform; 11
(g) "Conviction or being held civilly liable" or "convicted or held civilly liable" 12
means a criminal finding of responsibility, guilt, or conviction, with or 13
without an adjudication of guilt, being held civilly responsible or liable, or 14
having a judgment levied for an antitrust violation in any federal or state 15
trial court of record relating to charges brought by indictment, information, 16
or complaint on or after January 1, 2023, as a result of a jury verdict, 17
nonjury trial, or entry of a plea of guilty or nolo contendere or other finding 18
of responsibility or liability; 19
(h) "Deplatform" means the action or practice by a social media platform to 20
permanently delete or ban a user or to temporarily delete or ban a user from 21
the social media platform for more than fourteen (14) days; 22
(i) "Economic incentives" means state grants, cash grants, tax exemptions, tax 23
refunds, tax credits, state funds, and other state incentives administered by 24
the Department of Revenue; 25
(j) "Journalistic enterprise" means an entity doing business in Kentucky that: 26
1. Publishes in excess of one hundred thousand (100,000) words 27 UNOFFICIAL COPY 22 RS BR 144
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available online with at least fifty thousand (50,000) paid subscribers 1
or one hundred thousand (100,000) monthly active users; 2
2. Publishes one hundred (100) hours of audio or video available online 3
with at least one hundred million (100,000,000) viewers annually; 4
3. Operates a cable channel that provides more than forty (40) hours of 5
content per week to more than one hundred thousand (100,000) cable 6
television subscribers; or 7
4. Operates under a broadcast license issues by the Federal 8
Communications Commission; 9
(k) "Post-prioritization" means action by a social media platform to place, 10
feature, or prioritize certain content or material ahead of, below, or in a 11
more or less prominent position than others in a newsfeed, a feed, a view, or 12
in search results. The term does not include post-prioritization of content 13
and material of a third party, including other users, based on payments by 14
that third party to the social media platform; 15
(l) "Person" means a natural person or an entity organized under the laws of 16
any state or of the United States which operates as a social media platform; 17
(m) "Public entity" means the state and any of its departments or agencies; 18
(n) "Shadow ban" means an action by a social media platform, through any 19
means, whether the action is determined by a natural person or an 20
algorithm, to limit or eliminate the exposure of a user or content or material 21
posted by a user to other users of the social media platform. This term 22
includes acts of shadow banning by a social media platform which are not 23
readily apparent to a user; 24
(o) "Social media platform" means any information service, system, Internet 25
search engine, or access software provider that: 26
1. Provides or enables computer access by multiple users to a computer 27 UNOFFICIAL COPY 22 RS BR 144
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server, including an Internet platform or a social media site; 1
2. Operates as a sole proprietorship, partnership, limited liability 2
company, corporation, association, or other legal entity; 3
3. Does business in the state; and 4
4. Satisfies at least one (1) of the following thresholds: 5
a. Has annual gross revenues in excess of one hundred million 6
dollars ($100,000,000), as adjusted in January of each odd-7
numbered year to reflect any increase in the Consumer Price 8
Index for All Urban Consumers as determined by the United 9
States Department of Labor; or 10
b. Has at least one hundred million (100,000,000) monthly 11
individual platform participants globally; and 12
(p) "User" means a person who resides or is domiciled in this state and who 13
has an account on a social media platform, regardless of whether the 14
person posts or has posted content or material to the social media platform. 15
(2) A social media platform shall: 16
(a) Publish the standards, including detailed definitions, it uses or has used for 17
determining how to censor, deplatform, and shadow ban; 18
(b) Apply censorship, deplatforming, and shadow banning standards in a 19
consistent manner among its users on the platform; 20
(c) Inform each user about any changes to its user rules, terms, and 21
agreements before implementing the changes and shall not make changes 22
more than once every thirty (30) days; 23
(d) Not censor or shadow ban a user’s content or material or deplatform a user 24
from the social media platform: 25
1. Without notifying the user who posted or attempted to post the content 26
or material; or 27 UNOFFICIAL COPY 22 RS BR 144
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2. In a way that violates this section; 1
(e) 1. Provide a mechanism that allows a user to request the number of 2
other individual platform participants who were provided or shown the 3
user's content or posts; and 4
2. Provide, upon request, a user with the number of other individual 5
platform participants who were provided or shown content or posts; 6
(f) 1. Categorize algorithms used for post-prioritization and shadow 7
banning; and 8
2. Allow a user to opt out of post-prioritization and shadow banning 9
algorithm categories to allow sequential or chronological posts and 10
content; 11
(g) Provide users with an annual notice on the use of algorithms for post-12
prioritization and shadow banning and reoffer annually the opt-out 13
opportunity in paragraph (f) of this subsection; 14
(h) Not apply or use post-prioritization or shadow banning algorithms for 15
content and material posted by or about a user who is known by the social 16
media platform to be a candidate beginning on the date of qualification and 17
ending on the date of the election or the date the candidate ceases to be a 18
candidate. Post-prioritization of certain content or material from or about a 19
candidate for office based on payments to the social media platform by the 20
candidate for office or a third party is not a violation of this paragraph. A 21
social media platform shall provide each user a method by which the user 22
may be identified as a qualified candidate and which provides sufficient 23
information to allow the social media platform to confirm the user’s 24
qualification by reviewing the Web site of the State Board of Elections or 25
the Web site of the local county clerk; 26
(i) Allow a user who has been deplatformed to access or retrieve all of the 27 UNOFFICIAL COPY 22 RS BR 144
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user’s information, content, material, and data for at least sixty (60) days 1
after the user receives the notice required under paragraph (d)1. of this 2
subsection; and 3
(j) Not take any action to censor, deplatform, or shadow ban a journalistic 4
enterprise based on the content of its publication or broadcast. Post-5
prioritization of certain journalistic enterprise content based on payments to 6
the social media platform by the journalistic enterprise is not a violation of 7
this paragraph. This paragraph does not apply if the content or material is 8
obscene. 9
A social media platform that fails to comply with any of the provisions of this 10
subsection commits an unfair or deceptive act or practice. 11
(3) For purposes of subsection (2) of this section, a notification shall: 12
(a) Be in writing; 13
(b) Be delivered via electronic mail or direct electronic notification to the user 14
within seven (7) days after the censoring action; 15
(c) Include a thorough rationale explaining the reason that the social media 16
platform censored the user; and 17
(d) Include a precise and thorough explanation of how the social media 18
platform became aware of the censored content or material, including a 19
thorough explanation of the algorithms used, if any, to identify or flag the 20
user’s content or material as objectionable. 21
(4) Notwithstanding any other provisions of this section, a social media platform is 22
not required to notify a user if the censored content or material is obscene. 23
(5) If the Attorney General, by his or her own inquiry or as a result of a complaint, 24
suspects that a violation of this section is imminent, occurring, or has occurred, 25
the Attorney General may investigate the suspected violation. Based on its 26
investigation, the Attorney General may bring a civil or administrative action 27 UNOFFICIAL COPY 22 RS BR 144
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under this section. 1
(6) A user may only bring a private cause of action for violations of subsection (2)(b) 2
or (2)(d)1. of this section. In a private cause of action brought under paragraph 3
(2)(b) or (2)(d)1. of this section, the court may award the following remedies to 4
the user: 5
(a) Up to one hundred thousand dollars ($100,000) in statutory damages per 6
proven claim; 7
(b) Actual damages; 8
(c) If aggravating factors are present, punitive damages; 9
(d) Other forms of equitable relief, including injunctive relief; or 10
(e) If the user was deplatformed in violation of subsection (2)(b), costs and 11
reasonable attorney fees. 12
(7) For purposes of bringing an action in accordance with subsections (5) and (6) of 13
this section, each failure to comply with the individual provisions of subsection 14
(2) of this section shall be treated as a separate violation, act, or practice. For 15
purposes of bringing an action in accordance with subsections (5) and (6) of this 16
section, a social media platform that censors, shadow bans, deplatforms, or 17
applies post-prioritization algorithms to candidates and users in the state is 18
conclusively presumed to be both engaged in substantial and not isolated 19
activities within the state and operating, conducting, engaging in, or carrying on 20
a business, and doing business in this state, and is therefore subject to the 21
jurisdiction of the courts of the state. 22
(8) In an investigation by the Attorney General into alleged violations of this section 23
and pursuant to KRS 367.240, the Attorney General's investigative powers 24
include but are not limited to the ability to subpoena any algorithm used by a 25
social media platform related to any alleged violation. 26
(9) This section shall only be enforced to the extent not inconsistent with federal law 27 UNOFFICIAL COPY 22 RS BR 144
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and 47 U.S.C. sec. 230(e)(3), and notwithstanding any other provision of state 1
law. 2
SECTION 3. A NEW SECTION OF KRS CHAPTER 367 IS CREATED TO 3
READ AS FOLLOWS: 4
(1) Notwithstanding other provisions in the Kentucky Revised Statutes: 5
(a) A person or an affiliate who has been placed on the antitrust violator 6
vendor list following a conviction or being held civilly liable for an antitrust 7
violation shall not be eligible to: 8
1. Submit a bid, proposal, or reply for any new contract to provide any 9
goods or services to a public entity; 10
2. Submit a bid, proposal, or reply on new leases of real property to a 11
public entity; 12
3. Perform work as a contractor, supplier, subcontractor, or consultant 13
under a new contract with a public entity; or 14
4. Transact new business with a public entity; 15
(b) A public entity shall not accept a bid, proposal, or reply from, award a new 16
contract to, or transact new business with any person or affiliate on the 17
antitrust violator vendor list unless that person or affiliate has been 18
removed from the list pursuant to subsection (8) of this section; and 19
(c) This subsection shall not apply to contracts that were awarded or business 20
transactions that began before a person or an affiliate was placed on the 21
antitrust violator vendor list or before January 1, 2023, whichever date 22
occurs later. 23
(2) A public entity in the Commonwealth procuring invitations to bid, requests for 24
proposals, and invitations to negotiate, as set forth in the Kentucky Revised 25
Statutes, shall release a statement informing persons of the provisions of 26
subsection (1)(a) of this section. 27 UNOFFICIAL COPY 22 RS BR 144
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(3) The Department of Law shall maintain an antitrust violator vendor list of the 1
names and addresses of the persons or affiliates who have been disqualified from 2
the public contracting and purchasing process under this section. The 3
Department of Law shall electronically publish the initial antitrust violator 4
vendor list on January 1, 2023, and shall update and electronically publish the 5
list quarterly thereafter. Notwithstanding this subsection, a person or an affiliate 6
disqualified from the public contracting and purchasing process pursuant to this 7
section shall be disqualified as of the date the Department of Law enters the final 8
order. 9
(4) The Department of Law shall promulgate administrative regulations to effectuate 10
the provisions of this section. 11
(5) In determining whether it is in the public interest to place a person or an affiliate 12
on the antitrust violator vendor list pursuant to subsection (1) of this section, the 13
adjudicating body shall consider the following factors: 14
(a) Whether the person or affiliate was convicted or held civilly liable for an 15
antitrust violation; 16
(b) The nature and details of the antitrust violation; 17
(c) The degree of culpability of the person or affiliate proposed to be placed on 18
the antitrust violator vendor list; 19
(d) Reinstatement or clemency in any jurisdiction in relation to the antitrust 20
violation at issue in the proceeding; 21
(e) The needs of public entities for additional competition in the procurement 22
of goods and services in their respective markets; and 23
(f) The effect of the antitrust violations on residents of the Commonwealth. 24
(6) (a) Upon receipt of an information or indictment from any source that a person 25
has been charged with or accused of violating any state or federal antitrust 26
law in a civil or criminal proceeding, including a civil investigative demand, 27 UNOFFICIAL COPY 22 RS BR 144
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brought by the Attorney General, a state attorney, the Federal Trade 1
Commission, or the United States Department of Justice on or after 2
January 1, 2023, the Attorney General shall determine whether there is 3
probable cause that a person has likely violated the underlying antitrust 4
laws, which shall justify temporary placement of the person on the antitrust 5
violator vendor list until the proceeding concludes. This paragraph shall not 6
apply to affiliates. 7
(b) A person shall not be temporarily placed on the antitrust violator vendor list 8
until the Attorney General: 9
1. Provides notice to the person it seeks to temporarily place on the 10
antitrust violator vendor list; and 11
2. Proves to the adjudicating body that it is in the public interest to 12
temporarily place this person on the antitrust violator vendor list. 13
(c) In determining whether it is in the public interest to place a person on the 14
antitrust violator vendor list, the adjudicating body shall consider the 15
following factors: 16
1. The likelihood the person will be convicted or held civilly liable for the 17
antitrust violation; 18
2. The nature and details of the antitrust violation; 19
3. The degree of culpability of the person proposed to be placed on the 20
antitrust violator vendor list; 21
4. The needs of public entities for additional competition in procurement 22
of goods and services in their respective markets; and 23
5. The effect of the antitrust violations on residents of the 24
Commonwealth. 25
(7) Any person or affiliate placed on the antitrust vendor list shall be entitled to an 26
administrative hearing pursuant to KRS Chapter 13B. 27 UNOFFICIAL COPY 22 RS BR 144
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(8) A person or an affiliate may be removed from the antitrust violator vendor list 1
subject to such terms and conditions as shall be prescribed by the Department of 2
Law and upon determination by the adjudicating body that removal is in the 3
public interest. In determining whether removal is in the public interest, the 4
adjudicating body shall consider any relevant factors, including but not limited to 5
the factors identified in subsection (6)(c) of this section. 6
(9) The conviction of a person or a person being held civilly liable for an antitrust 7
violation, or placement on the antitrust violator vendor list, shall not affect any 8
rights or obligations under any contract, franchise, or other binding agreement 9
that predates such conviction, finding of civil liability, or placement on the 10
antitrust violator vendor list. 11
(10) A person who has been placed on the antitrust violator vendor list shall not be a 12
qualified applicant for economic incentives, and such a person shall not be 13
qualified to receive such economic incentives. This subsection shall not apply to 14
economic incentives that are awarded before a person is placed on the antitrust 15
violator vendor list or before January 1, 2023. 16
(11) This section shall not apply to: 17
(a) Any activity regulated by the Kentucky Public Service Commission; 18
(b) The purchase of goods or services made by any public entity from the 19
Department of Corrections, from the nonprofit corporation organized under 20
KRS Chapter 273, or from any qualified nonprofit agency for the blind or 21
other severely handicapped persons under the state law; or 22
(c) Any contract with a public entity to provide any goods or services for 23
emergency response efforts related to a state of emergency declaration 24
issued by the Governor. 25
Section 4. KRS 367.150 is amended to read as follows: 26
The Department of Law shall have the following functions, powers and duties: 27 UNOFFICIAL COPY 22 RS BR 144
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(1) To promote the coordination of consumer protection activities of all departments, 1
divisions and branches of state, county and city government, concerned with 2
activities involving consumer interests; 3
(2) To assist, advise and cooperate with federal, state and local agencies and officials to 4
protect and promote the interests of the consumer public; to advise the Governor 5
and the legislature in all matters concerning consumer affairs; 6
(3) To conduct investigations, research, studies and analysis of matters affecting health, 7
safety, the human environment, the marketplace and all other consumer affairs, and 8
take appropriate action; to communicate the view of the consumer to state, county, 9
and city agencies and officials; 10
(4) To study the operation of all laws, rules, regulations, orders, and state policies 11
affecting consumers and to recommend to the Governor and to the Legislature, new 12
legislation, rules, regulations, orders, and policies in the consumers' interest; 13
(5) To organize and hold conferences on problems affecting consumers; to undertake 14
activities to encourage business, industry, the professions, and others offering goods 15
or services to maintain high standards of honesty, fair business practices, and public 16
responsibility in the production, promotion and sale of consumer goods and 17
services; 18
(6) To provide a central clearing house of information for all citizens of the 19
Commonwealth by collecting and compiling consumer complaints and inquiries, 20
and forwarding them to the proper governmental agencies if appropriate; it shall be 21
the further responsibility of the department to maintain records indicating the final 22
disposition by the agency of any matter so referred; 23
(7) To organize, promote and conduct consumer education programs within the 24
Commonwealth; to cooperate with and establish necessary liaison with consumer 25
organizations; 26
(8) (a) To appear before any federal, state or local governmental branch, commission, 27 UNOFFICIAL COPY 22 RS BR 144
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department, rate-making or regulatory body or agency, to represent and be 1
heard on behalf of consumers' interests; and 2
(b) To be made a real party in interest to any action on behalf of consumer 3
interests involving a quasijudicial or rate-making proceeding of any state or 4
local governmental branch, commission, department, agency, or rate-making 5
body whenever deemed necessary and advisable in the consumers' interest by 6
the Attorney General;[.] 7
(9) To perform all duties related to the maintenance of the antitrust violator vendor 8
list; and 9
(10) To perform such other acts as may be incidental to the exercise of the functions, 10
powers and duties set forth in KRS 367.120 to 367.300 and Sections 2 and 3 of this 11
Act. 12