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Texas House Bill HB20

Texas 2021 - 87th 1st C.S.

Texas House Bill HB20 Compare Versions

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11 87S10956 SCL-D
22 By: Cain H.B. No. 20
33
44
55 A BILL TO BE ENTITLED
66 AN ACT
77 relating to complaint procedures and disclosure requirements for
88 and censorship of users' expressions by social media platforms.
99 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1010 SECTION 1. The legislature finds that:
1111 (1) each person in this state has a fundamental
1212 interest in the free exchange of ideas and information, including
1313 the freedom of others to share and receive ideas and information;
1414 (2) this state has a fundamental interest in
1515 protecting the free exchange of ideas and information in this
1616 state;
1717 (3) social media platforms and interactive computer
1818 services function as common carriers, are affected with a public
1919 interest, are central public forums for public debate, and have
2020 enjoyed governmental support in the United States; and
2121 (4) social media platforms and interactive computer
2222 services with the largest number of users are common carriers by
2323 virtue of their market dominance.
2424 SECTION 2. Subtitle C, Title 5, Business & Commerce Code, is
2525 amended by adding Chapter 120 to read as follows:
2626 CHAPTER 120. SOCIAL MEDIA PLATFORMS
2727 SUBCHAPTER A. GENERAL PROVISIONS
2828 Sec. 120.001. DEFINITIONS. In this chapter:
2929 (1) "Social media platform" means an Internet website
3030 or application that is open to the public, allows a user to create
3131 an account, and enables users to communicate with other users for
3232 the primary purpose of posting information, comments, messages, or
3333 images. The term does not include:
3434 (A) an Internet service provider as defined by
3535 Section 324.055;
3636 (B) electronic mail; or
3737 (C) an online service, application, or website:
3838 (i) that consists primarily of news,
3939 sports, entertainment, or other information or content that is not
4040 user generated but is preselected by the provider; and
4141 (ii) for which any chat, comments, or
4242 interactive functionality is incidental to, directly related to, or
4343 dependent on the provision of the content described by Subparagraph
4444 (i).
4545 (2) "User" means a person who posts, uploads,
4646 transmits, shares, or otherwise publishes or receives content
4747 through a social media platform.
4848 Sec. 120.002. APPLICABILITY OF CHAPTER. (a) This chapter
4949 applies only to a user who:
5050 (1) resides in this state;
5151 (2) does business in this state; or
5252 (3) shares or receives content on a social media
5353 platform in this state.
5454 (b) This chapter applies only to a social media platform
5555 that functionally has more than 50 million active users in the
5656 United States in a calendar month.
5757 Sec. 120.003. CONSTRUCTION OF CHAPTER. This chapter may
5858 not be construed to limit or expand intellectual property law.
5959 SUBCHAPTER B. DISCLOSURE REQUIREMENTS
6060 Sec. 120.051. PUBLIC DISCLOSURES. (a) A social media
6161 platform shall, in accordance with this subchapter, publicly
6262 disclose accurate information regarding its content management,
6363 data management, and business practices, including specific
6464 information regarding the manner in which the social media
6565 platform:
6666 (1) curates and targets content to users;
6767 (2) places and promotes content, services, and
6868 products, including its own content, services, and products;
6969 (3) moderates content;
7070 (4) uses search, ranking, or other algorithms or
7171 procedures that determine results on the platform; and
7272 (5) provides users' performance data on the use of the
7373 platform and its products and services.
7474 (b) The disclosure required by Subsection (a) must be
7575 sufficient to enable users to make an informed choice regarding the
7676 purchase of or use of access to or services from the platform.
7777 (c) A social media platform shall publish the disclosure
7878 required by Subsection (a) on an Internet website that is easily
7979 accessible by the public.
8080 Sec. 120.052. ACCEPTABLE USE POLICY. (a) A social media
8181 platform shall publish an acceptable use policy in a location that
8282 is easily accessible to a user.
8383 (b) A social media platform's acceptable use policy must:
8484 (1) reasonably inform users about the types of content
8585 allowed on the social media platform;
8686 (2) explain the steps the social media platform will
8787 take to ensure content complies with the policy;
8888 (3) explain the means by which users can notify the
8989 social media platform of content that potentially violates the
9090 acceptable use policy, illegal content, or illegal activity, which
9191 includes:
9292 (A) subject to Subsection (c), making available a
9393 live company representative to take user complaints through a
9494 toll-free telephone number that users may call during regular
9595 business hours;
9696 (B) an e-mail address or relevant complaint
9797 intake mechanism to handle user complaints; and
9898 (C) a complaint system described by Subchapter C;
9999 and
100100 (4) include publication of a quarterly transparency
101101 report outlining actions taken to enforce the policy.
102102 (c) The live company representative described by Subsection
103103 (b)(3)(A) must at a minimum be available eight hours a day, five
104104 days a week.
105105 Sec. 120.053. QUARTERLY TRANSPARENCY REPORT. (a) As part
106106 of a social media platform's acceptable use policy under Section
107107 120.052, the social media platform shall publish a quarterly
108108 transparency report that includes, with respect to the preceding
109109 three-month period:
110110 (1) the total number of instances in which the social
111111 media platform was alerted to illegal content, illegal activity, or
112112 potentially policy-violating content by:
113113 (A) a user complaint;
114114 (B) an employee of or person contracting with the
115115 social media platform; or
116116 (C) an internal automated detection tool;
117117 (2) subject to Subsection (b), the number of instances
118118 in which the social media platform took action with respect to
119119 illegal content, illegal activity, or potentially policy-violating
120120 content known to the platform due to the nature of the content as
121121 illegal content, illegal activity, or potentially policy-violating
122122 content, including:
123123 (A) content removal;
124124 (B) content demonetization;
125125 (C) content deprioritization;
126126 (D) the addition of an assessment to content;
127127 (E) account suspension;
128128 (F) account removal; or
129129 (G) any other action taken in accordance with the
130130 platform's acceptable use policy;
131131 (3) the country of the user who provided the content
132132 for each instance described by Subdivision (2);
133133 (4) the number of coordinated campaigns, if
134134 applicable;
135135 (5) the number of instances in which a user appealed
136136 the decision to remove the user's potentially policy-violating
137137 content;
138138 (6) the percentage of appeals described by Subdivision
139139 (5) that resulted in the restoration of content; and
140140 (7) a description of each tool, practice, action, or
141141 technique used in enforcing the acceptable use policy.
142142 (b) The information described by Subsection (a)(2) must be
143143 categorized by:
144144 (1) the rule violated; and
145145 (2) the source for the alert of illegal content,
146146 illegal activity, or potentially policy-violating content,
147147 including:
148148 (A) a government;
149149 (B) a user;
150150 (C) an internal automated detection tool;
151151 (D) coordination with other social media
152152 platforms; or
153153 (E) persons employed by or contracting with the
154154 platform.
155155 (c) A social media platform shall publish the information
156156 described by Subsection (a) with an open license, in a
157157 machine-readable and open format, and in a location that is easily
158158 accessible to users.
159159 SUBCHAPTER C. COMPLAINT PROCEDURES
160160 Sec. 120.101. COMPLAINT SYSTEM. A social media platform
161161 shall provide an easily accessible complaint system to enable a
162162 user to submit a complaint in good faith and track the status of the
163163 complaint, including a complaint regarding:
164164 (1) illegal content or activity; or
165165 (2) a decision made by the social media platform to
166166 remove content posted by the user.
167167 Sec. 120.102. PROCESSING OF COMPLAINTS. A social media
168168 platform that receives notice of illegal content or illegal
169169 activity on the social media platform shall make a good faith effort
170170 to evaluate the legality of the content or activity within 24 hours
171171 of receiving the notice, subject to reasonable exceptions based on
172172 concerns about the legitimacy of the notice.
173173 Sec. 120.103. REMOVAL OF CONTENT; EXCEPTIONS. (a) Except
174174 as provided by Subsection (b), if a social media platform removes
175175 content based on a violation of the platform's acceptable use
176176 policy under Section 120.052, the social media platform shall,
177177 concurrently with the removal:
178178 (1) notify the user who provided the content of the
179179 removal and explain the reason the content was removed;
180180 (2) allow the user to appeal the decision to remove the
181181 content to the platform; and
182182 (3) provide written notice to the user who provided
183183 the content of:
184184 (A) the determination regarding an appeal
185185 requested under Subdivision (2); and
186186 (B) in the case of a reversal of the social media
187187 platform's decision to remove the content, the reason for the
188188 reversal.
189189 (b) A social media platform is not required to provide a
190190 user with notice or an opportunity to appeal under Subsection (a) if
191191 the social media platform:
192192 (1) is unable to contact the user after taking
193193 reasonable steps to make contact; or
194194 (2) knows that the potentially policy-violating
195195 content relates to an ongoing law enforcement investigation.
196196 Sec. 120.104. APPEAL PROCEDURES. If a social media
197197 platform receives a user complaint on the social media platform's
198198 removal from the platform of content provided by the user that the
199199 user believes was not potentially policy-violating content, the
200200 social media platform shall, not later than the 14th day after the
201201 date the platform receives the complaint:
202202 (1) review the content;
203203 (2) determine whether the content adheres to the
204204 platform's acceptable use policy;
205205 (3) take appropriate steps based on the determination
206206 under Subdivision (2); and
207207 (4) notify the user regarding the determination made
208208 under Subdivision (2) and the steps taken under Subdivision (3).
209209 SUBCHAPTER D. ENFORCEMENT
210210 Sec. 120.151. ACTION BY ATTORNEY GENERAL. (a) The attorney
211211 general may bring an action against a social media platform to
212212 enjoin a violation of this chapter.
213213 (b) If an injunction is granted in an action brought under
214214 Subsection (a), the attorney general may recover costs incurred in
215215 bringing the action, including reasonable attorney's fees and
216216 reasonable investigative costs.
217217 SECTION 3. Title 6, Civil Practice and Remedies Code, is
218218 amended by adding Chapter 143A to read as follows:
219219 CHAPTER 143A. DISCOURSE ON SOCIAL MEDIA PLATFORMS
220220 Sec. 143A.001. DEFINITIONS. In this chapter:
221221 (1) "Censor" means any action taken to edit, alter,
222222 block, ban, delete, remove, deplatform, demonetize, de-boost,
223223 regulate, restrict, inhibit the publication or reproduction of, or
224224 deny equal access or visibility to expression, to suspend a right to
225225 post, remove, or post an addendum to any content or material posted
226226 by a user, or to otherwise discriminate against expression. The
227227 term includes an action taken to inhibit a social media platform or
228228 interactive computer service user's ability to be viewed by or
229229 interact with another user of the platform or service.
230230 (2) "Expression" means any word, music, sound, still
231231 or moving image, number, or other perceivable communication.
232232 (3) "Interactive computer service" means an
233233 information service, system, or access software provider that
234234 provides or enables computer access by multiple users to a computer
235235 server. The term does not include an Internet service provider as
236236 defined by Section 324.055, Business & Commerce Code.
237237 (4) "Receive," with respect to an expression, means to
238238 read, hear, look at, access, or gain access to the expression.
239239 (5) "Social media platform" means an Internet search
240240 engine, Internet website, Internet system, access software
241241 provider, or application that is open to the public, allows a user
242242 of the platform to create an account, and enables a user to
243243 communicate with other users for the primary purpose of posting
244244 information, comments, messages, or images. The term does not
245245 include:
246246 (A) an Internet service provider as defined by
247247 Section 324.055, Business & Commerce Code;
248248 (B) electronic mail; or
249249 (C) an online service or application or Internet
250250 website:
251251 (i) that consists primarily of news,
252252 sports, entertainment, or other information or content that is not
253253 user generated but is preselected by the provider; and
254254 (ii) for which any chat, comments, or
255255 interactive functionality is incidental to, directly related to, or
256256 dependent on the provision of the content described by Subparagraph
257257 (i).
258258 (6) "Unlawful expression" means an expression that is
259259 unlawful under the United States Constitution, federal law, the
260260 Texas Constitution, or the laws of this state, including expression
261261 that constitutes a tort under the laws of this state or the United
262262 States.
263263 (7) "User" means a person who posts, uploads,
264264 transmits, shares, or otherwise publishes or receives expression,
265265 through a social media platform or interactive computer service.
266266 Sec. 143A.002. CENSORSHIP PROHIBITED. (a) A social media
267267 platform or interactive computer service may not censor a user, a
268268 user's expression, or a user's ability to receive the expression of
269269 another person based on:
270270 (1) the viewpoint of the user or another person;
271271 (2) the viewpoint represented in the user's expression
272272 or another person's expression; or
273273 (3) a user's geographic location in this state or any
274274 part of this state.
275275 (b) This section applies regardless of whether the
276276 viewpoint is expressed on a social media platform or interactive
277277 computer service or through any other medium.
278278 Sec. 143A.003. WAIVER PROHIBITED. (a) A waiver or
279279 purported waiver of the protections provided by this chapter is
280280 void as unlawful and against public policy, and a court or
281281 arbitrator may not enforce or give effect to the waiver, including
282282 in an action brought under Section 143A.007, notwithstanding any
283283 contract or choice-of-law provision in a contract.
284284 (b) The waiver prohibition described by Subsection (a) is a
285285 public-policy limitation on contractual and other waivers of the
286286 highest importance and interest to this state, and this state is
287287 exercising and enforcing this limitation to the full extent
288288 permitted by the United States Constitution and Texas Constitution.
289289 Sec. 143A.004. APPLICABILITY OF CHAPTER. (a) This chapter
290290 applies only to a user who:
291291 (1) resides in this state;
292292 (2) does business in this state; or
293293 (3) shares or receives expression in this state.
294294 (b) This chapter applies only to expression that is shared
295295 or received in this state.
296296 (c) This chapter applies only to a social media platform or
297297 interactive computer service that functionally has more than 50
298298 million active users in the United States in a calendar month.
299299 (d) This chapter applies to the maximum extent permitted by
300300 the United States Constitution and the laws of the United States but
301301 no further than the maximum extent permitted by the United States
302302 Constitution and the laws of the United States.
303303 Sec. 143A.005. LIMITATION ON EFFECT OF CHAPTER. This
304304 chapter does not subject a social media platform or interactive
305305 computer service to damages or other legal remedies to the extent
306306 the social media platform or interactive computer service is
307307 protected from those remedies under federal law.
308308 Sec. 143A.006. CONSTRUCTION OF CHAPTER. (a) This chapter
309309 does not prohibit a social media platform or interactive computer
310310 service from:
311311 (1) censoring expression that the social media
312312 platform or interactive computer service is specifically
313313 authorized to censor by federal law; or
314314 (2) censoring unlawful expression, including
315315 expression that unlawfully harasses individuals or unlawfully
316316 incites violence.
317317 (b) This chapter may not be construed to prohibit or
318318 restrict a social media platform or interactive computer service
319319 from authorizing or facilitating a user's ability to censor
320320 specific expression on the user's platform or page at the request of
321321 that user.
322322 (c) This chapter may not be construed to expand or limit
323323 intellectual property law.
324324 Sec. 143A.007. USER REMEDIES. (a) A user may bring an
325325 action against a social media platform or interactive computer
326326 service that violates this chapter with respect to the user.
327327 (b) If the user proves that the social media platform or
328328 interactive computer service violated this chapter with respect to
329329 the user, the user is entitled to recover:
330330 (1) declaratory relief under Chapter 37, including
331331 costs and reasonable and necessary attorney's fees under Section
332332 37.009; and
333333 (2) injunctive relief.
334334 (c) If a social media platform or interactive computer
335335 service fails to promptly comply with a court order in an action
336336 brought under this section, the court shall hold the social media
337337 platform or interactive computer service in contempt and shall use
338338 all lawful measures to secure immediate compliance with the order,
339339 including daily penalties sufficient to secure immediate
340340 compliance.
341341 (d) A user may bring an action under this section regardless
342342 of whether another court has enjoined the attorney general from
343343 enforcing this chapter or declared any provision of this chapter
344344 unconstitutional unless that court decision is binding on the court
345345 in which the action is brought.
346346 (e) Nonmutual issue preclusion and nonmutual claim
347347 preclusion are not defenses to an action brought under this
348348 section.
349349 Sec. 143A.008. ACTION BY ATTORNEY GENERAL. (a) Any person
350350 may notify the attorney general of a violation or potential
351351 violation of this chapter by a social media platform or interactive
352352 computer service.
353353 (b) The attorney general may bring an action to enjoin a
354354 violation or a potential violation of this chapter. If the
355355 injunction is granted, the attorney general may recover costs and
356356 reasonable attorney's fees incurred in bringing the action and
357357 reasonable investigative costs incurred in relation to the action.
358358 Sec. 143A.009. SEVERABILITY. (a) Mindful of Leavitt v.
359359 Jane L., 518 U.S. 137 (1996), in which in the context of determining , 518 U.S. 137 (1996), in which in the context of determining
360360 the severability of a state statute the United States Supreme Court
361361 held that an explicit statement of legislative intent is
362362 controlling, it is the intent of the legislature that every
363363 provision, section, subsection, sentence, clause, phrase, or word
364364 in this chapter, and every application of the provisions in this
365365 chapter, is severable from each other.
366366 (b) If any application of any provision in this chapter to
367367 any person, group of persons, or circumstances is found by a court
368368 to be invalid or unconstitutional, the remaining applications of
369369 that provision to all other persons and circumstances shall be
370370 severed and may not be affected. All constitutionally valid
371371 applications of this chapter shall be severed from any applications
372372 that a court finds to be invalid, leaving the valid applications in
373373 force, because it is the legislature's intent and priority that the
374374 valid applications be allowed to stand alone. Even if a reviewing
375375 court finds that a substantial amount of the provision's
376376 applications are unconstitutional, judged in relation to the
377377 provision's plainly legitimate sweep, the applications that do not
378378 violate the United States Constitution and Texas Constitution shall
379379 be severed from the remaining applications and shall remain in
380380 force, and the provision shall be interpreted, as a matter of state
381381 law, as if the provision contained explicit language limiting its
382382 application to the persons, group of persons, or circumstances for
383383 which the statute's application does not violate the United States
384384 Constitution and Texas Constitution.
385385 (c) If any court declares or finds a provision of this
386386 chapter facially unconstitutional, when discrete applications of
387387 that provision can be enforced against a person, group of persons,
388388 or circumstances without violating the United States Constitution
389389 and Texas Constitution, those applications shall be severed from
390390 all remaining applications of the provision, and the provision
391391 shall be interpreted by every state and federal court, as a matter
392392 of state law, as if the provision contained explicit language
393393 limiting its application to the persons, group of persons, or
394394 circumstances for which the provision's application will not
395395 violate the United States Constitution and Texas Constitution.
396396 (d) The legislature further declares that it would have
397397 enacted this chapter, and each constitutional provision, section,
398398 subsection, sentence, clause, phrase, or word, and all
399399 constitutional applications of this chapter, irrespective of the
400400 fact that any discrete provision, section, subsection, sentence,
401401 clause, phrase, or word, or applications of this chapter, were to be
402402 declared unconstitutional or severed from the remainder of the
403403 chapter's provisions and applications.
404404 (e) If any provision of this chapter is found by any court to
405405 be unconstitutionally vague, the applications of that provision
406406 that do not present constitutional vagueness problems shall be
407407 severed and remain in force.
408408 (f) No court may decline to enforce the severability
409409 requirements of Subsections (a), (b), (c), (d), and (e) on the
410410 ground that severance would rewrite the statute or involve the
411411 court in legislative or lawmaking activity. A court that declines
412412 to enforce or enjoins a state official from enforcing a statutory
413413 provision is never rewriting the statute, as the statute continues
414414 to contain the exact same words as it did before the court's
415415 decision. A judicial injunction or declaration of
416416 unconstitutionality:
417417 (1) is nothing more than an edict prohibiting
418418 enforcement that may subsequently be vacated by a later court if
419419 that court has a different understanding of the requirements of the
420420 Texas Constitution or United States Constitution;
421421 (2) is not a formal amendment of the language in a
422422 statute; and
423423 (3) no more rewrites a statute than a decision by the
424424 executive not to enforce a duly enacted statute in a limited and
425425 defined set of circumstances.
426426 SECTION 4. (a) Because this Act has been enacted amid
427427 uncertainty about the application of the United States Constitution
428428 and relevant federal statutes, every provision, section,
429429 subsection, sentence, or clause of this Act, and every application
430430 of the provisions of this Act to any person, group of persons, or
431431 circumstances, is severable from each other. If any application of
432432 any provision of this Act is found by a court to be unconstitutional
433433 or invalid, on any ground for any reason whatsoever, the remaining
434434 application of that provision to other persons and circumstances
435435 shall be severed and may not be affected. The legislature further
436436 declares that it would have passed this Act, each provision,
437437 section, subsection, sentence, or clause of this Act, and all
438438 constitutional applications of this Act regardless of the fact that
439439 any provision, section, subsection, sentence, or clause of this Act
440440 or applications of this Act were to be declared unconstitutional by
441441 any court.
442442 (b) If any provision of this Act is found by any court to be
443443 unconstitutionally vague, the applications of that provision that
444444 do not present constitutional vagueness problems shall be severed
445445 and remain in force.
446446 SECTION 5. (a) Chapter 143A, Civil Practice and Remedies
447447 Code, as added by this Act, applies only to an action taken on or
448448 after the effective date of this Act.
449449 (b) A person who was a user, as defined by Section 143A.001,
450450 Civil Practice and Remedies Code, as added by this Act, before the
451451 effective date of this Act may bring an action under Section
452452 143A.007, Civil Practice and Remedies Code, as added by this Act, to
453453 remedy censorship of the user's ability to publish or receive
454454 expression that occurred before the effective date of this Act if
455455 the censorship continues after this Act takes effect and violates
456456 Chapter 143A, Civil Practice and Remedies Code, as added by this
457457 Act.
458458 SECTION 6. This Act takes effect on the 91st day after the
459459 last day of the legislative session.