Texas 2021 - 87th Regular

Texas House Bill HB3105 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1	87R9480 MLH/JG-D
2	2	By: Toth H.B. No. 3105
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to unlawful acts and practices of social media platforms;
8	8	providing a civil penalty.
9	9	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	10	SECTION 1. Chapter 15, Business & Commerce Code, is amended
11	11	by adding Subchapter F to read as follows:
12	12	SUBCHAPTER F. ANTITRUST VIOLATOR LIST
13	13	Sec. 15.60. DEFINITIONS; ANTITRUST VIOLATOR LIST. (a) The
14	14	definitions provided under Section 113.001 apply to this
15	15	subchapter.
16	16	(b) The division shall create and maintain an antitrust
17	17	violator vendor list that contains the names and addresses of
18	18	persons who have violated state or federal antitrust laws. The
19	19	division shall publish the initial list on January 1, 2022, and
20	20	shall update and electronically republish the list quarterly.
21	21	Sec. 15.61. PLACEMENT ON ANTITRUST VIOLATOR LIST. (a) On
22	22	receiving reasonable information from any source that a person has
23	23	been convicted of or held liable for a state or federal antitrust
24	24	violation, the division shall conduct an investigation to determine
25	25	whether good cause exists to place that person or an affiliate of
26	26	that person on the antitrust violator vendor list.
27	27	(b) If the investigation by the division is for an antitrust
28	28	violation related to shadow banning by a social media platform
29	29	under Chapter 113, the division may subpoena the social media
30	30	platform for any algorithm related to its shadow banning and any
31	31	related documentation used within the previous 24 months related to
32	32	shadow banning.
33	33	(c) If the division finds good cause, the division shall
34	34	notify the person or affiliate in writing of:
35	35	(1) the intent to place the name of that person or
36	36	affiliate on the antitrust violator vendor list;
37	37	(2) the person's or affiliate's right to a hearing
38	38	under Section 15.63;
39	39	(3) the procedure that must be followed to obtain a
40	40	hearing; and
41	41	(4) the applicable time requirements.
42	42	(d) If the person or affiliate does not request a hearing
43	43	before the 21st day after the date of receiving notice under this
44	44	section, the division shall enter a final order placing the name of
45	45	the person or affiliate on the antitrust violator vendor list.
46	46	(e) A person or affiliate may not be placed on the antitrust
47	47	violator vendor list without receiving an individual notice of
48	48	intent from the division.
49	49	(f) Notwithstanding the publication dates of the antitrust
50	50	violator vendor list, a person or affiliate placed on the list is
51	51	disqualified from the public contracting and purchasing process
52	52	under this subchapter as of the date the final order is entered.
53	53	Sec. 15.62. TEMPORARY PLACEMENT ON ANTITRUST VIOLATOR LIST.
54	54	(a) If a person has been charged or accused of a violation of state
55	55	or federal antitrust laws in a civil or criminal proceeding brought
56	56	by the attorney general, a state attorney, or the United States
57	57	Department of Justice after September 1, 2021, the attorney general
58	58	may, on a finding of probable cause that a person has likely
59	59	violated the underlying antitrust laws, temporarily place the
60	60	person on the antitrust violator vendor list until formal
61	61	proceedings have concluded.
62	62	(b) If probable cause exists, the attorney general shall
63	63	notify the person in writing of:
64	64	(1) the intent to temporarily place the person on the
65	65	antitrust violator vendor list;
66	66	(2) the person's right to a hearing under Section
67	67	15.63;
68	68	(3) the procedure that must be followed to obtain a
69	69	hearing; and
70	70	(4) the applicable time requirements.
71	71	(c) If the person does not request a hearing before the 21st
72	72	day after the date of receiving notice under this section, the
73	73	attorney general shall enter a final order temporarily placing the
74	74	name of the person on the antitrust violator vendor list.
75	75	(d) A person may not be placed on the antitrust violator
76	76	vendor list without receiving an individual notice of intent from
77	77	the attorney general.
78	78	(e) If the person is found not guilty of or not liable for
79	79	violating state or federal antitrust laws, the attorney general
80	80	shall remove the person from the antitrust violator vendor list.
81	81	Sec. 15.63. HEARING. (a) Not later than the 21st day after
82	82	the date of receipt of the notice of intent, the person or affiliate
83	83	may file a petition for a formal hearing under Chapter 2003,
84	84	Government Code, to determine whether it is in the public interest
85	85	for that person or affiliate to be placed on the antitrust violator
86	86	vendor list.
87	87	(b) Notwithstanding the procedures adopted under Section
88	88	2003.050, Government Code, the administrative law judge shall enter
89	89	a final order not later than the 30th day after the date of the
90	90	formal hearing.
91	91	(c) The final order shall contain:
92	92	(1) findings of fact;
93	93	(2) conclusions of law;
94	94	(3) interpretation of agency rules; and
95	95	(4) any other information required by law or rule to be
96	96	contained in the final order.
97	97	(d) The final order shall direct the division to place or
98	98	not place the person or affiliate on the antitrust violator vendor
99	99	list.
100	100	(e) In determining whether it is in the public interest to
101	101	place a person or affiliate on the antitrust violator vendor list,
102	102	the administrative law judge shall consider the following factors:
103	103	(1) whether the person or affiliate committed an
104	104	antitrust violation;
105	105	(2) the nature and details of the antitrust violation;
106	106	(3) the degree of culpability of the person or
107	107	affiliate;
108	108	(4) whether the person or affiliate has been
109	109	reinstated or received clemency in any jurisdiction for the
110	110	antitrust violation at issue in the proceeding; and
111	111	(5) the needs of public entities for additional
112	112	competition in procuring goods and services in their respective
113	113	markets.
114	114	(f) In any proceeding under this section, the division must
115	115	prove that it is in the public interest for the person or affiliate
116	116	to be placed on the antitrust violator vendor list. Proof that a
117	117	person has been convicted, has been held liable, or is an affiliate
118	118	of a convicted or liable person constitutes prima facie evidence
119	119	that it is in the public interest for the person or affiliate to be
120	120	put on the antitrust violator vendor list. Status as an affiliate
121	121	must be proven by clear and convincing evidence. If the
122	122	administrative law judge determines that the person was not
123	123	convicted, was not held liable, or is not an affiliate of a
124	124	convicted or liable person, the administrative law judge may not
125	125	direct the person to be placed on the antitrust violator vendor
126	126	list.
127	127	(g) A person or affiliate who has petitioned for a hearing
128	128	under this section may offer evidence on any relevant issue. An
129	129	affidavit alone is not sufficient evidence that the person has not
130	130	been convicted, has not been held liable, or is not an affiliate of
131	131	a convicted or liable person. On establishment of a prima facie case
132	132	that it is in the public interest for the person or affiliate to be
133	133	put on the antitrust violator vendor list, that person or affiliate
134	134	may prove by a preponderance of the evidence that it would not be in
135	135	the public interest to put the person or affiliate on the antitrust
136	136	violator vendor list, based on the factors in Subsection (e).
137	137	(h) The final order of the administrative law judge is a
138	138	final agency determination.
139	139	Sec. 15.64. EFFECT OF PLACEMENT ON ANTITRUST VIOLATOR LIST.
140	140	(a) A person or affiliate who has been placed on the antitrust
141	141	violator vendor list after being convicted of or held liable for an
142	142	antitrust violation may not:
143	143	(1) submit a bid, proposal, or reply for a new contract
144	144	to provide goods or services to a public entity;
145	145	(2) submit a bid, proposal, or reply for a new contract
146	146	with a public entity for the construction or repair of a public
147	147	building or public work;
148	148	(3) submit a bid, proposal, or reply for a new lease
149	149	of real property to a public entity;
150	150	(4) be awarded or perform work as a contractor,
151	151	supplier, subcontractor, or consultant under a new contract with a
152	152	public entity; and
153	153	(5) transact any new business with a public entity.
154	154	(b) A public entity may not accept any bid, proposal, or
155	155	reply from, award any new contract to, or transact any new business
156	156	with a person or affiliate on the antitrust violator vendor list.
157	157	(c) This section does not apply to contracts that were
158	158	awarded or business transactions that began before the person or
159	159	affiliate was placed on the antitrust violator vendor list.
160	160	(d) All invitations to bid, requests for proposals, and
161	161	invitations to negotiate must contain a statement informing persons
162	162	of the restriction under Subsection (b).
163	163	(e) A person on the antitrust violator vendor list is not
164	164	qualified to receive any economic incentives from the state,
165	165	including state grants, cash grants, tax exemptions, tax refunds,
166	166	tax credits, state funds, or other state incentives.
167	167	(f) The conviction or liability of a person for an antitrust
168	168	violation, or placement on the antitrust violator vendor list, may
169	169	not affect any rights or obligations under any contract, franchise,
170	170	or other binding agreement that predates the conviction, holding of
171	171	liability, or placement on the antitrust violator vendor list.
172	172	Sec. 15.65. REMOVAL FROM ANTITRUST VIOLATOR LIST. (a) A
173	173	person may be removed from the antitrust violator vendor list
174	174	subject to terms and conditions that may be prescribed by the
175	175	administrative law judge on a determination that removal is in the
176	176	public interest.
177	177	(b) In determining whether removal is in the public
178	178	interest, the administrative law judge shall consider any relevant
179	179	factors, including the factors in Section 15.63(e).
180	180	(c) The administrative law judge shall determine that
181	181	removal of the person or affiliate from the antitrust violator
182	182	vendor list is in the public interest on a showing that:
183	183	(1) the person was found not guilty or not liable;
184	184	(2) the antitrust case was dismissed;
185	185	(3) the court entered a finding in the person's favor;
186	186	(4) the person's conviction or determination of
187	187	liability was reversed on appeal; or
188	188	(5) the person was pardoned.
189	189	(d) A person on the antitrust violator vendor list may not
190	190	petition for removal from the list before six months after the date
191	191	a final order is entered under this subchapter, unless the petition
192	192	is based on a reversal of or pardon for the conviction or holding of
193	193	liability, in which case the person may petition at any time.
194	194	(e) The petition must be filed with the division, and the
195	195	proceeding shall be conducted under the procedures and requirements
196	196	of this subchapter.
197	197	(f) If a petition is denied, the person or affiliate may not
198	198	petition for another hearing before nine months after the date of
199	199	denial, unless the petition is based on a reversal of or pardon for
200	200	the conviction or holding of liability.
201	201	(g) The division may petition for removal prior to the
202	202	expiration of the period under Subsection (f) if, in its
203	203	discretion, it determines that removal would be in the public
204	204	interest.
205	205	SECTION 2. Subtitle C, Title 5, Business & Commerce Code, is
206	206	amended by adding Chapter 113 to read as follows:
207	207	CHAPTER 113. UNLAWFUL ACTS AND PRACTICES OF SOCIAL MEDIA PLATFORMS
208	208	SUBCHAPTER A. GENERAL PROVISIONS
209	209	Sec. 113.001. DEFINITIONS. In this chapter:
210	210	(1) "Affiliate" means:
211	211	(A) a person who controls, is controlled by, or
212	212	is under common control with another person; or
213	213	(B) a predecessor or successor of a person
214	214	described by Paragraph (A).
215	215	(2) "Algorithm" means a mathematical set of rules that
216	216	specify how a group of data behaves or is organized.
217	217	(3) "Antitrust violation" includes violations of both
218	218	state and federal antitrust law.
219	219	(4) "Candidate" has the meaning assigned by Section
220	220	251.001, Election Code.
221	221	(5) "Censor" includes action by a social media
222	222	platform to delete, regulate, restrict, edit, alter, remove,
223	223	inhibit publication of, or post an addendum to any content posted by
224	224	a user.
225	225	(6) "Deplatform" means the permanent removal or ban of
226	226	a user or suspension of the user's ability to post by a social media
227	227	platform, or a temporary removal, ban, or suspension of not less
228	228	than 60 days.
229	229	(7) "Division" means the antitrust division of the
230	230	Office of Attorney General.
231	231	(8) "Post-prioritization" means the placement or
232	232	ordering of content to feature some content over others, and does
233	233	not include prioritization based on monetary payments.
234	234	(9) "Shadow ban" means action by a social media
235	235	platform to limit or eliminate the exposure of a user or content
236	236	posted by a user to other users, and includes action that is not
237	237	apparent to a user.
238	238	(10) "Social media platform" means an information
239	239	service, system, internet search engine, or access software
240	240	provider that provides or enables computer access to a computer
241	241	server by multiple users, and includes a platform operated by a
242	242	for-profit entity that:
243	243	(A) has annual gross revenues in excess of $100
244	244	million; or
245	245	(B) has at least 100 million monthly users
246	246	globally.
247	247	(11) "User" means a person who has an account on a
248	248	social media platform, regardless of whether the person posts or
249	249	has posted content.
250	250	Sec. 113.002. APPLICABILITY. (a) This chapter does not
251	251	apply to the purchase of goods or services made by any public entity
252	252	from the Texas Department of Criminal Justice.
253	253	(b) A provision of this chapter may be enforced
254	254	notwithstanding any state or local law and only to the extent not
255	255	inconsistent with federal law, including 47 U.S.C. Section
256	256	230(e)(3).
257	257	SUBCHAPTER B. SOCIAL MEDIA PLATFORMS DUTIES
258	258	Sec. 113.051. GENERAL DUTIES. (a) A social media platform
259	259	shall publish the standards it uses for determining how to censor,
260	260	deplatform, and shadow ban users, including definitions of any
261	261	necessary terms.
262	262	(b) A social media platform shall apply censorship,
263	263	deplatforming, and shadow banning standards in a consistent manner
264	264	among all users of the platform.
265	265	(c) A social media platform must inform users of the
266	266	platform of any changes to the platform's user rules, terms, and
267	267	agreements before implementing the changes.
268	268	(d) A social media platform shall provide:
269	269	(1) a mechanism to allow a user of the platform to
270	270	request the number of other users who viewed the user's content; and
271	271	(2) a user of the platform with the number of other
272	272	users who viewed the user's content when a request is made using the
273	273	mechanism described by Subdivision (1).
274	274	(e) A social media platform shall:
275	275	(1) categorize algorithms used for
276	276	post-prioritization and shadow banning based on the type of content
277	277	and user distinctions made by the algorithms; and
278	278	(2) allow a user to elect to not use
279	279	post-prioritization and shadow banning algorithm categories and
280	280	instead view all content in chronological order based on when
281	281	content was posted.
282	282	(f) A social media platform shall annually provide users
283	283	with notice on the use of algorithms for post-prioritization and
284	284	shadow banning and provide users with an opportunity to make the
285	285	election under Subsection (e)(2).
286	286	(g) A social media platform shall allow a deplatformed user
287	287	to access or retrieve all of the user's information, content, and
288	288	data for a period of not less than 60 days after the date the user is
289	289	deplatformed.
290	290	Sec. 113.052. JOURNALISTIC ENTERPRISE DUTIES. (a) In this
291	291	section, "journalistic enterprise" means an entity that:
292	292	(1) publishes not less than 100,000 words available
293	293	online with not less than 50,000 paid subscribers or 100,000
294	294	monthly active users;
295	295	(2) publishes not less than 100 hours of audio or video
296	296	online with not less than 100 million yearly viewers;
297	297	(3) operates a cable channel providing not less than
298	298	40 hours of content each week to not less than 100,000 cable
299	299	television subscribers; or
300	300	(4) operates under a broadcast license issued by the
301	301	Federal Communications Commission.
302	302	(b) A social media platform may not knowingly take action to
303	303	censor, deplatform, or shadow ban a user who is a journalistic
304	304	enterprise based on the content of a publication or broadcast of the
305	305	journalistic enterprise. Each social media platform shall develop a
306	306	method for users of the platform to identify themselves as a
307	307	journalistic enterprise.
308	308	(c) The prohibition described by Subsection (b) does not
309	309	apply to the post-prioritization of a journalistic enterprise's
310	310	content based on payments to a platform by the journalistic
311	311	enterprise for the post-prioritization.
312	312	Sec. 113.053. NOTIFICATION OF CENSORSHIP OR DEPLATFORMING.
313	313	(a) A social media platform may not censor or deplatform a user
314	314	without providing notification to the user who posted or attempted
315	315	to post the content.
316	316	(b) Notice under this section must:
317	317	(1) be in writing;
318	318	(2) be delivered by electronic mail or direct
319	319	electronic notification to the user not more than 30 days after the
320	320	censoring or deplatforming action;
321	321	(3) include a thorough explanation of why the social
322	322	media platform censored or deplatformed the user; and
323	323	(4) include a precise and thorough explanation of how
324	324	the social media platform became aware of the content, including an
325	325	explanation of any algorithm used to identify the user's content as
326	326	objectionable.
327	327	(c) Notwithstanding this section, a social media platform
328	328	is not required to notify a user if the censored content is obscene,
329	329	as that term is defined in Section 43.21, Penal Code.
330	330	SUBCHAPTER C. CERTAIN RESTRICTIONS RELATED TO CANDIDATES
331	331	Sec. 113.101. POST-PRIORITIZATION AND SHADOW BANNING OF
332	332	CERTAIN CONTENT PROHIBITED; EXCEPTION. (a) A social media platform
333	333	may not apply or use a post-prioritization or shadow banning
334	334	algorithm on content posted by or about a user of the social media
335	335	platform who is a state or local candidate. Each social media
336	336	platform shall develop a method for users of the platform to
337	337	identify themselves as a state or local candidate in an election and
338	338	protocols to confirm the user's candidacy in that election.
339	339	(b) The prohibition described by Subsection (a) applies
340	340	only during the period beginning on the date an individual's
341	341	candidacy in an election begins and ending on the date of the
342	342	election or the date the individual's candidacy in that election
343	343	ends.
344	344	(c) The prohibition described by Subsection (a) does not
345	345	apply to a social media platform's post-prioritization of content
346	346	based on a user's payment to the social media platform for the
347	347	post-prioritization.
348	348	Sec. 113.102. DEPLATFORMING PROHIBITED; CIVIL PENALTY. (a)
349	349	Notwithstanding any state or local law and only to the extent
350	350	permitted under federal law, a social media platform may not
351	351	knowingly deplatform a state or local candidate.
352	352	(b) A social media platform that violates this section is
353	353	liable for a civil penalty of not more than $100,000 for the
354	354	deplatforming of a state candidate and not more than $10,000 for the
355	355	deplatforming of a local candidate. Each day of a continuing
356	356	violation constitutes a separate ground for recovery.
357	357	(c) On request of a deplatformed state or local candidate,
358	358	the attorney general may bring an action in a district court to
359	359	collect a civil penalty under this section. The attorney general
360	360	and the candidate may recover reasonable expenses incurred in
361	361	obtaining relief under this section, including court costs,
362	362	attorney's fees, investigation costs, witness fees, and deposition
363	363	expenses.
364	364	Sec. 113.103. REPORTING REQUIREMENTS. (a) Notwithstanding
365	365	any state or local law and only to the extent permitted under
366	366	federal law, a social media platform that provides free advertising
367	367	to a state or local candidate shall submit to the Texas Ethics
368	368	Commission, on a form prescribed by the commission, a report that
369	369	lists the estimated cash value of the free advertising as an in-kind
370	370	contribution to the candidate.
371	371	(b) For purposes of Subsection (a), a post, comment, or
372	372	other content posted by or about a state or local candidate on the
373	373	social media platform that is shown in the same or a similar manner
374	374	to other posts, comments, or content is not considered free
375	375	advertising.
376	376	SUBCHAPTER D. GENERAL ENFORCEMENT
377	377	Sec. 113.151. DECEPTIVE TRADE PRACTICE. A violation of
378	378	this chapter is a deceptive trade practice under Subchapter E,
379	379	Chapter 17, and is actionable under that subchapter.
380	380	Sec. 113.152. PRIVATE ENFORCEMENT. A user may bring a
381	381	private cause of action against a social media platform for a
382	382	violation of Section 113.051(b) or 113.053. In an action brought
383	383	under this section, the court may award to the user:
384	384	(1) not more than $100,000 in statutory damages for
385	385	each claim;
386	386	(2) actual damages;
387	387	(3) punitive damages, if there are aggravating factors
388	388	present;
389	389	(4) other forms of equitable relief; and
390	390	(5) if the user was deplatformed in violation of
391	391	Section 113.051(b), costs and reasonable attorney's fees.
392	392	SECTION 3. Chapter 113, Business & Commerce Code, as added
393	393	by this Act, applies only to an action taken by a social media
394	394	platform on and after the effective date of this Act.
395	395	SECTION 4. This Act takes effect immediately if it receives
396	396	a vote of two-thirds of all the members elected to each house, as
397	397	provided by Section 39, Article III, Texas Constitution. If this
398	398	Act does not receive the vote necessary for immediate effect, this
399	399	Act takes effect September 1, 2021.