87S10956 SCL-D
By: Cain H.B. No. 20
A BILL TO BE ENTITLED
AN ACT
relating to complaint procedures and disclosure requirements for
and censorship of users' expressions by social media platforms.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. The legislature finds that:
(1) each person in this state has a fundamental
interest in the free exchange of ideas and information, including
the freedom of others to share and receive ideas and information;
(2) this state has a fundamental interest in
protecting the free exchange of ideas and information in this
state;
(3) social media platforms and interactive computer
services function as common carriers, are affected with a public
interest, are central public forums for public debate, and have
enjoyed governmental support in the United States; and
(4) social media platforms and interactive computer
services with the largest number of users are common carriers by
virtue of their market dominance.
SECTION 2. Subtitle C, Title 5, Business & Commerce Code, is
amended by adding Chapter 120 to read as follows:
CHAPTER 120. SOCIAL MEDIA PLATFORMS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 120.001. DEFINITIONS. In this chapter:
(1) "Social media platform" means an Internet website
or application that is open to the public, allows a user to create
an account, and enables users to communicate with other users for
the primary purpose of posting information, comments, messages, or
images. The term does not include:
(A) an Internet service provider as defined by
Section 324.055;
(B) electronic mail; or
(C) an online service, application, or website:
(i) that consists primarily of news,
sports, entertainment, or other information or 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).
(2) "User" means a person who posts, uploads,
transmits, shares, or otherwise publishes or receives content
through a social media platform.
Sec. 120.002. APPLICABILITY OF CHAPTER. (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 applies only to a social media platform
that functionally has more than 50 million active users in the
United States in a calendar month.
Sec. 120.003. CONSTRUCTION OF CHAPTER. This chapter may
not be construed to limit or expand intellectual property law.
SUBCHAPTER B. DISCLOSURE REQUIREMENTS
Sec. 120.051. PUBLIC DISCLOSURES. (a) A social media
platform shall, in accordance with this subchapter, 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 of or use of access to or services from the platform.
(c) A social media platform shall publish the disclosure
required by Subsection (a) on an Internet website that is easily
accessible by the public.
Sec. 120.052. ACCEPTABLE USE POLICY. (a) A social media
platform shall publish an acceptable use policy in a location that
is easily accessible to a user.
(b) A social media platform's acceptable use policy must:
(1) reasonably inform users about the types of content
allowed 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, which
includes:
(A) subject to Subsection (c), making available a
live company representative to take user complaints through a
toll-free telephone number that users may call during regular
business hours;
(B) an e-mail address or relevant complaint
intake mechanism to handle user complaints; and
(C) a complaint system described by Subchapter C;
and
(4) include publication of a quarterly transparency
report outlining actions taken to enforce the policy.
(c) The live company representative described by Subsection
(b)(3)(A) must at a minimum be available eight hours a day, five
days a week.
Sec. 120.053. QUARTERLY TRANSPARENCY REPORT. (a) As part
of a social media platform's acceptable use policy under Section
120.052, the social media platform shall publish a quarterly
transparency report that includes, with respect to the preceding
three-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;
(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
the decision to remove the user's potentially policy-violating
content;
(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.
SUBCHAPTER C. COMPLAINT PROCEDURES
Sec. 120.101. COMPLAINT SYSTEM. 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) illegal content or activity; or
(2) a decision made by the social media platform to
remove content posted by the user.
Sec. 120.102. PROCESSING OF COMPLAINTS. 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 24 hours
of receiving the notice, subject to reasonable exceptions based on
concerns about the legitimacy of the notice.
Sec. 120.103. REMOVAL OF CONTENT; EXCEPTIONS. (a) Except
as provided by Subsection (b), if a social media platform removes
content based on a violation of the platform's acceptable use
policy under Section 120.052, the social media platform shall,
concurrently with the removal:
(1) notify the user who provided the content of the
removal and explain the reason the content was removed;
(2) allow the user to appeal the decision to remove the
content to the platform; and
(3) provide written notice to the user who provided
the content 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 to remove the content, the reason for the
reversal.
(b) A social media platform is not required to provide a
user with notice or an opportunity to appeal under Subsection (a) if
the social media platform:
(1) is unable to contact the user after taking
reasonable steps to make contact; or
(2) knows that the potentially policy-violating
content relates to an ongoing law enforcement investigation.
Sec. 120.104. APPEAL PROCEDURES. If a social media
platform receives a user complaint on the social media platform's
removal from the platform of content provided by the user that the
user believes was not potentially policy-violating content, the
social media platform shall, not later than the 14th 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).
SUBCHAPTER D. ENFORCEMENT
Sec. 120.151. ACTION BY ATTORNEY GENERAL. (a) The attorney
general may bring an action against a social media platform to
enjoin a violation of this chapter.
(b) If an injunction is granted in an action brought under
Subsection (a), the attorney general may recover costs incurred in
bringing the action, including reasonable attorney's fees and
reasonable investigative costs.
SECTION 3. Title 6, Civil Practice and Remedies Code, is
amended by adding Chapter 143A to read as follows:
CHAPTER 143A. DISCOURSE ON SOCIAL MEDIA PLATFORMS
Sec. 143A.001. DEFINITIONS. In this chapter:
(1) "Censor" means any action taken to edit, alter,
block, ban, delete, remove, deplatform, demonetize, de-boost,
regulate, restrict, inhibit the publication or reproduction of, or
deny equal access or visibility to expression, to suspend a right to
post, remove, or post an addendum to any content or material posted
by a user, or to otherwise discriminate against expression. The
term includes an action taken to inhibit a social media platform or
interactive computer service user's ability to be viewed by or
interact with another user of the platform or service.
(2) "Expression" means any word, music, sound, still
or moving image, number, or other perceivable communication.
(3) "Interactive computer service" means an
information service, system, or access software provider that
provides or enables computer access by multiple users to a computer
server. The term does not include an Internet service provider as
defined by Section 324.055, Business & Commerce Code.
(4) "Receive," with respect to an expression, means to
read, hear, look at, access, or gain access to the expression.
(5) "Social media platform" means an Internet search
engine, Internet website, Internet system, access software
provider, or application that is open to the public, allows a user
of the platform to create an account, and enables a user to
communicate with other users for the primary purpose of posting
information, comments, messages, or images. The term does not
include:
(A) an Internet service provider as defined by
Section 324.055, Business & Commerce Code;
(B) electronic mail; or
(C) an online service or application or Internet
website:
(i) that consists primarily of news,
sports, entertainment, or other information or 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).
(6) "Unlawful expression" means an expression that is
unlawful under the United States Constitution, federal law, the
Texas Constitution, or the laws of this state, including expression
that constitutes a tort under the laws of this state or the United
States.
(7) "User" means a person who posts, uploads,
transmits, shares, or otherwise publishes or receives expression,
through a social media platform or interactive computer service.
Sec. 143A.002. CENSORSHIP PROHIBITED. (a) A social media
platform or interactive computer service may not censor a user, a
user's expression, or a user's ability to receive the expression of
another person based on:
(1) the viewpoint of the user or another person;
(2) the viewpoint represented in the user's expression
or another person's expression; or
(3) a user's geographic location in this state or any
part of this state.
(b) This section applies regardless of whether the
viewpoint is expressed on a social media platform or interactive
computer service or through any other medium.
Sec. 143A.003. 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
in an action brought under Section 143A.007, 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 Texas Constitution.
Sec. 143A.004. APPLICABILITY OF CHAPTER. (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 expression in this state.
(b) This chapter applies only to expression that is shared
or received in this state.
(c) This chapter applies only to a social media platform or
interactive computer service that functionally has more than 50
million active users in the United States in a calendar month.
(d) This chapter 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.
Sec. 143A.005. LIMITATION ON EFFECT OF CHAPTER. This
chapter does not subject a social media platform or interactive
computer service to damages or other legal remedies to the extent
the social media platform or interactive computer service is
protected from those remedies under federal law.
Sec. 143A.006. CONSTRUCTION OF CHAPTER. (a) This chapter
does not prohibit a social media platform or interactive computer
service from:
(1) censoring expression that the social media
platform or interactive computer service is specifically
authorized to censor by federal law; or
(2) censoring unlawful expression, including
expression that unlawfully harasses individuals or unlawfully
incites violence.
(b) This chapter may not be construed to prohibit or
restrict a social media platform or interactive computer service
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.
(c) This chapter may not be construed to expand or limit
intellectual property law.
Sec. 143A.007. USER REMEDIES. (a) A user may bring an
action against a social media platform or interactive computer
service that violates this chapter with respect to the user.
(b) If the user proves that the social media platform or
interactive computer service violated this chapter with respect to
the user, the user is entitled to recover:
(1) declaratory relief under Chapter 37, including
costs and reasonable and necessary attorney's fees under Section
37.009; and
(2) injunctive relief.
(c) If a social media platform or interactive computer
service fails to promptly comply with a court order in an action
brought under this section, the court shall hold the social media
platform or interactive computer service 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.
Sec. 143A.008. 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 or interactive
computer service.
(b) The attorney general may bring an action to enjoin a
violation or a potential violation of this chapter. If the
injunction is granted, the attorney general may recover costs and
reasonable attorney's fees incurred in bringing the action and
reasonable investigative costs incurred in relation to the action.
Sec. 143A.009. SEVERABILITY. (a) Mindful of Leavitt v.
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
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 chapter, and every application of the provisions in this
chapter, is severable from each other.
(b) If any application of any provision in this chapter 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 chapter 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. Even if a reviewing
court finds that a substantial amount of the provision's
applications are unconstitutional, judged in relation to the
provision's plainly legitimate sweep, the applications that do not
violate the United States Constitution and Texas Constitution shall
be severed from the remaining applications and shall remain in
force, and the provision shall be interpreted, as a matter of state
law, as if the provision contained explicit language limiting its
application to the persons, group of persons, or circumstances for
which the statute's application does not violate the United States
Constitution and Texas Constitution.
(c) If any court declares or finds a provision of this
chapter 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 Texas Constitution, those applications shall be severed from
all remaining applications of the provision, and the provision
shall be interpreted by every state and federal court, as a matter
of state law, as if the provision contained explicit language
limiting its application to the persons, group of persons, or
circumstances for which the provision's application will not
violate the United States Constitution and Texas Constitution.
(d) The legislature further declares that it would have
enacted this chapter, and each constitutional provision, section,
subsection, sentence, clause, phrase, or word, and all
constitutional applications of this chapter, irrespective of the
fact that any discrete provision, section, subsection, sentence,
clause, phrase, or word, or applications of this chapter, were to be
declared unconstitutional or severed from the remainder of the
chapter's provisions and applications.
(e) If any provision of this chapter 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) 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 is never rewriting the statute, as the statute continues
to contain the exact same words as it did 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
Texas 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.
SECTION 4. (a) Because this Act has been enacted amid
uncertainty about the application of the United States Constitution
and relevant federal statutes, every provision, section,
subsection, sentence, or clause of this Act, and every application
of the provisions of this Act to any person, group of persons, or
circumstances, is severable from each other. If any application of
any provision of this Act is found by a court to be unconstitutional
or invalid, on any ground for any reason whatsoever, the remaining
application of that provision to other persons and circumstances
shall be severed and may not be affected. The legislature further
declares that it would have passed this Act, each provision,
section, subsection, sentence, or clause of this Act, and all
constitutional applications of this Act regardless of the fact that
any provision, section, subsection, sentence, or clause of this Act
or applications of this Act were to be declared unconstitutional by
any court.
(b) 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.
SECTION 5. (a) Chapter 143A, Civil Practice and Remedies
Code, as added by this Act, applies only to an action taken on or
after the effective date of this Act.
(b) A person who was a user, as defined by Section 143A.001,
Civil Practice and Remedies Code, as added by this Act, before the
effective date of this Act may bring an action under Section
143A.007, Civil Practice and Remedies Code, as added by this Act, to
remedy censorship of the user's ability to publish or receive
expression that occurred before the effective date of this Act if
the censorship continues after this Act takes effect and violates
Chapter 143A, Civil Practice and Remedies Code, as added by this
Act.
SECTION 6. This Act takes effect on the 91st day after the
last day of the legislative session.