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Texas Senate Bill SB5

Texas 2021 - 87th 1st C.S.

Texas Senate Bill SB5 Compare Versions

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1-By: Hughes, et al. S.B. No. 5
1+By: Hughes S.B. No. 5
2+ (In the Senate - Filed July 8, 2021; July 8, 2021, read
3+ first time and referred to Committee on State Affairs;
4+ July 13, 2021, reported adversely, with favorable Committee
5+ Substitute by the following vote: Yeas 6, Nays 2; July 13, 2021,
6+ sent to printer.)
7+Click here to see the committee vote
8+ COMMITTEE SUBSTITUTE FOR S.B. No. 5 By: Hughes
29
310
411 A BILL TO BE ENTITLED
512 AN ACT
613 relating to complaint procedures and disclosure requirements for,
714 and to the censorship of users' expressions by, social media
815 platforms.
916 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1017 SECTION 1. The legislature finds that:
1118 (1) social media platforms are akin to common
1219 carriers, are affected with a public interest, are central public
1320 forums for public debate, and have enjoyed governmental support in
1421 the United States; and
1522 (2) social media platforms with the largest number of
1623 users are common carriers by virtue of their market dominance.
1724 SECTION 2. Subtitle C, Title 5, Business & Commerce Code, is
1825 amended by adding Chapter 120 to read as follows:
1926 CHAPTER 120. SOCIAL MEDIA PLATFORMS
2027 SUBCHAPTER A. GENERAL PROVISIONS
2128 Sec. 120.001. DEFINITIONS. In this chapter:
2229 (1) "Social media platform" means an Internet website
2330 or application that is open to the public, allows a user to create
2431 an account, and enables users to communicate with other users for
2532 the primary purpose of posting information, comments, messages, or
2633 images. The term does not include:
2734 (A) an Internet service provider as defined by
2835 Section 324.055;
2936 (B) electronic mail; or
3037 (C) an online service, application, or website:
3138 (i) that consists primarily of news,
3239 sports, entertainment, or other information or content that is not
3340 user generated but is preselected by the provider; and
3441 (ii) for which any chat, comments, or
3542 interactive functionality is incidental to, directly related to, or
3643 dependent on the provision of the content described by Subparagraph
3744 (i).
3845 (2) "User" means a person who posts, uploads,
3946 transmits, shares, or otherwise publishes or receives content
40- through a social media platform. The term includes a person who has
41- a social media platform account that the social media platform has
42- disabled or locked.
47+ through a social media platform.
4348 Sec. 120.002. APPLICABILITY OF CHAPTER. (a) This chapter
4449 applies only to a user who:
4550 (1) resides in this state;
4651 (2) does business in this state; or
4752 (3) shares or receives content on a social media
4853 platform in this state.
4954 (b) This chapter applies only to a social media platform
5055 that functionally has more than 50 million active users in the
5156 United States in a calendar month.
5257 Sec. 120.003. CONSTRUCTION OF CHAPTER. This chapter may
5358 not be construed to limit or expand intellectual property law.
5459 SUBCHAPTER B. DISCLOSURE REQUIREMENTS
5560 Sec. 120.051. PUBLIC DISCLOSURES. (a) A social media
5661 platform shall, in accordance with this subchapter, publicly
5762 disclose accurate information regarding its content management,
5863 data management, and business practices, including specific
5964 information regarding the manner in which the social media
6065 platform:
6166 (1) curates and targets content to users;
6267 (2) places and promotes content, services, and
6368 products, including its own content, services, and products;
6469 (3) moderates content;
6570 (4) uses search, ranking, or other algorithms or
6671 procedures that determine results on the platform; and
6772 (5) provides users' performance data on the use of the
6873 platform and its products and services.
6974 (b) The disclosure required by Subsection (a) must be
7075 sufficient to enable users to make an informed choice regarding the
7176 purchase of or use of access to or services from the platform.
7277 (c) A social media platform shall publish the disclosure
7378 required by Subsection (a) on an Internet website that is easily
7479 accessible by the public.
7580 Sec. 120.052. ACCEPTABLE USE POLICY. (a) A social media
7681 platform shall publish an acceptable use policy in a location that
7782 is easily accessible to a user.
7883 (b) A social media platform's acceptable use policy must:
7984 (1) reasonably inform users about the types of content
8085 allowed on the social media platform;
8186 (2) explain the steps the social media platform will
8287 take to ensure content complies with the policy;
8388 (3) explain the means by which users can notify the
8489 social media platform of content that potentially violates the
8590 acceptable use policy, illegal content, or illegal activity, which
8691 includes:
8792 (A) subject to Subsection (c), making available a
8893 live company representative to take user complaints through a
8994 toll-free telephone number that users may call during regular
9095 business hours;
9196 (B) an e-mail address or relevant complaint
9297 intake mechanism to handle user complaints; and
9398 (C) a complaint system described by Subchapter C;
9499 and
95100 (4) include publication of a quarterly transparency
96101 report outlining actions taken to enforce the policy.
97102 (c) The live company representative described by Subsection
98103 (b)(3)(A) must at a minimum be available eight hours a day, five
99104 days a week.
100105 Sec. 120.053. QUARTERLY TRANSPARENCY REPORT. (a) As part
101106 of a social media platform's acceptable use policy under Section
102107 120.052, the social media platform shall publish a quarterly
103108 transparency report that includes, with respect to the preceding
104109 three-month period:
105110 (1) the total number of instances in which the social
106111 media platform was alerted to illegal content, illegal activity, or
107112 potentially policy-violating content by:
108113 (A) a user complaint;
109114 (B) an employee of or person contracting with the
110115 social media platform; or
111116 (C) an internal automated detection tool;
112117 (2) subject to Subsection (b), the number of instances
113118 in which the social media platform took action with respect to
114119 illegal content, illegal activity, or potentially policy-violating
115120 content known to the platform due to the nature of the content as
116121 illegal content, illegal activity, or potentially policy-violating
117122 content, including:
118123 (A) content removal;
119124 (B) content demonetization;
120125 (C) content deprioritization;
121126 (D) the addition of an assessment to content;
122127 (E) account suspension;
123128 (F) account removal; or
124129 (G) any other action taken in accordance with the
125130 platform's acceptable use policy;
126131 (3) the country of the user who provided the content
127132 for each instance described by Subdivision (2);
128133 (4) the number of coordinated campaigns, if
129134 applicable;
130135 (5) the number of instances in which a user appealed
131136 the decision to remove the user's potentially policy-violating
132137 content;
133138 (6) the percentage of appeals described by Subdivision
134139 (5) that resulted in the restoration of content; and
135140 (7) a description of each tool, practice, action, or
136141 technique used in enforcing the acceptable use policy.
137142 (b) The information described by Subsection (a)(2) must be
138143 categorized by:
139144 (1) the rule violated; and
140145 (2) the source for the alert of illegal content,
141146 illegal activity, or potentially policy-violating content,
142147 including:
143148 (A) a government;
144149 (B) a user;
145150 (C) an internal automated detection tool;
146151 (D) coordination with other social media
147152 platforms; or
148153 (E) persons employed by or contracting with the
149154 platform.
150155 (c) A social media platform shall publish the information
151156 described by Subsection (a) with an open license, in a
152157 machine-readable and open format, and in a location that is easily
153158 accessible to users.
154159 SUBCHAPTER C. COMPLAINT PROCEDURES
155160 Sec. 120.101. COMPLAINT SYSTEM. A social media platform
156161 shall provide an easily accessible complaint system to enable a
157162 user to submit a complaint in good faith and track the status of the
158163 complaint, including a complaint regarding:
159164 (1) illegal content or activity; or
160165 (2) a decision made by the social media platform to
161166 remove content posted by the user.
162167 Sec. 120.102. PROCESSING OF COMPLAINTS. A social media
163168 platform that receives notice of illegal content or illegal
164169 activity on the social media platform shall make a good faith effort
165170 to evaluate the legality of the content or activity within 24 hours
166171 of receiving the notice, subject to reasonable exceptions based on
167172 concerns about the legitimacy of the notice.
168173 Sec. 120.103. REMOVAL OF CONTENT; EXCEPTIONS. (a) Except
169174 as provided by Subsection (b), if a social media platform removes
170175 content based on a violation of the platform's acceptable use
171176 policy under Section 120.052, the social media platform shall,
172177 concurrently with the removal:
173178 (1) notify the user who provided the content of the
174179 removal and explain the reason the content was removed;
175180 (2) allow the user to appeal the decision to remove the
176181 content to the platform; and
177182 (3) provide written notice to the user who provided
178183 the content of:
179184 (A) the determination regarding an appeal
180185 requested under Subdivision (2); and
181186 (B) in the case of a reversal of the social media
182187 platform's decision to remove the content, the reason for the
183188 reversal.
184189 (b) A social media platform is not required to provide a
185190 user with notice or an opportunity to appeal under Subsection (a) if
186191 the social media platform:
187192 (1) is unable to contact the user after taking
188193 reasonable steps to make contact; or
189194 (2) knows that the potentially policy-violating
190195 content relates to an ongoing law enforcement investigation.
191196 Sec. 120.104. APPEAL PROCEDURES. If a social media
192197 platform receives a user complaint on the social media platform's
193198 removal from the platform of content provided by the user that the
194199 user believes was not potentially policy-violating content, the
195200 social media platform shall, not later than the 14th day after the
196201 date the platform receives the complaint:
197202 (1) review the content;
198203 (2) determine whether the content adheres to the
199204 platform's acceptable use policy;
200205 (3) take appropriate steps based on the determination
201206 under Subdivision (2); and
202207 (4) notify the user regarding the determination made
203208 under Subdivision (2) and the steps taken under Subdivision (3).
204209 SUBCHAPTER D. ENFORCEMENT
205210 Sec. 120.151. ACTION BY ATTORNEY GENERAL. (a) The attorney
206211 general may bring an action against a social media platform to
207212 enjoin a violation of this chapter.
208213 (b) If an injunction is granted in an action brought under
209214 Subsection (a), the attorney general may recover costs incurred in
210215 bringing the action, including reasonable attorney's fees and
211216 reasonable investigative costs.
212217 SECTION 3. Title 6, Civil Practice and Remedies Code, is
213218 amended by adding Chapter 143A to read as follows:
214219 CHAPTER 143A. DISCOURSE ON SOCIAL MEDIA PLATFORMS
215220 Sec. 143A.001. DEFINITIONS. In this chapter:
216221 (1) "Censor" means to block, ban, remove, deplatform,
217222 demonetize, de-boost, restrict, deny equal access or visibility to,
218223 or otherwise discriminate against expression.
219224 (2) "Expression" means any word, music, sound, still
220225 or moving image, number, or other perceivable communication.
221226 (3) "Receive," with respect to an expression, means to
222227 read, hear, look at, access, or gain access to the expression.
223228 (4) "Social media platform" has the meaning assigned
224229 by Section 120.001, Business & Commerce Code.
225230 (5) "Unlawful expression" means an expression that is
226231 unlawful under the United States Constitution, federal law, the
227232 Texas Constitution, or the laws of this state.
228233 (6) "User" means a person who posts, uploads,
229234 transmits, shares, or otherwise publishes or receives expression,
230- through a social media platform. The term includes a person who has
231- a social media platform account that the social media platform has
232- disabled or locked.
235+ through a social media platform.
233236 Sec. 143A.002. CENSORSHIP PROHIBITED. (a) A social media
234237 platform may not censor a user, a user's expression, or a user's
235238 ability to receive the expression of another person based on:
236239 (1) the viewpoint of the user or another person;
237240 (2) the viewpoint represented in the user's expression
238241 or another person's expression; or
239242 (3) a user's geographic location in this state or any
240243 part of this state.
241244 (b) This section applies regardless of whether the
242245 viewpoint is expressed on the social media platform or through any
243246 other medium.
244247 Sec. 143A.003. WAIVER PROHIBITED. (a) A waiver or
245248 purported waiver of the protections provided by this chapter is
246249 void as against public policy, and a court or arbitrator may not
247250 enforce or give effect to the waiver, including in an action brought
248251 under Section 143A.007, notwithstanding any contract or
249252 choice-of-law provision in a contract.
250253 (b) The waiver prohibition described by Subsection (a) is a
251254 public-policy limitation on contracts of the highest importance and
252255 interest to this state, and this state is exercising and enforcing
253256 this limitation to the full extent permitted by the United States
254257 Constitution and Texas Constitution.
255258 Sec. 143A.004. APPLICABILITY OF CHAPTER. (a) This chapter
256259 applies only to a user who:
257260 (1) resides in this state;
258261 (2) does business in this state; or
259262 (3) shares or receives expression in this state.
260263 (b) This chapter applies only to expression that is shared
261264 or received in this state.
262265 (c) This chapter applies only to a social media platform
263266 that functionally has more than 50 million active users in the
264267 United States in a calendar month.
265268 (d) This chapter does not apply to censorship of an
266269 expression that is the subject of a referral or request from an
267270 organization with the purpose of preventing the sexual exploitation
268271 of children and protecting survivors of childhood sexual abuse from
269272 ongoing harassment.
270273 (e) This chapter does not apply to censorship of an
271274 expression that directly incites criminal activity or consists of
272275 specific threats of violence targeted against a person or group
273276 because of their race, color, disability, religion, national origin
274277 or ancestry, age, sex, or status as a peace officer or judge.
275278 Sec. 143A.005. LIMITATION ON EFFECT OF CHAPTER. This
276279 chapter does not subject a social media platform to damages or other
277280 legal remedies to the extent the social media platform is protected
278281 from those remedies under federal law.
279282 Sec. 143A.006. CONSTRUCTION OF CHAPTER. (a) This chapter
280283 does not prohibit a social media platform from:
281284 (1) censoring expression that the social media
282285 platform is specifically authorized to censor by federal law; or
283286 (2) censoring unlawful expression.
284287 (b) This chapter may not be construed to prohibit or
285288 restrict a social media platform from authorizing or facilitating a
286289 user's ability to censor specific expression at the request of that
287290 user.
288291 (c) This chapter may not be construed to limit or expand
289292 intellectual property law.
290293 Sec. 143A.007. USER REMEDIES. (a) A user may bring an
291294 action against a social media platform that violates this chapter
292295 with respect to the user.
293296 (b) If the user proves that the social media platform
294297 violated this chapter with respect to the user, the user is entitled
295298 to recover:
296299 (1) declaratory relief under Chapter 37, including
297300 costs and reasonable and necessary attorney's fees under Section
298301 37.009; and
299302 (2) injunctive relief.
300303 (c) If a social media platform fails to promptly comply with
301304 a court order in an action brought under this section, the court
302305 shall hold the social media platform in contempt and shall use all
303306 lawful measures to secure immediate compliance with the order,
304307 including daily penalties sufficient to secure immediate
305308 compliance.
306309 Sec. 143A.008. ACTION BY ATTORNEY GENERAL. (a) Any person
307310 may notify the attorney general of a violation or potential
308311 violation of this chapter by a social media platform.
309312 (b) The attorney general may bring an action to enjoin a
310313 violation or a potential violation of this chapter. If the
311314 injunction is granted, the attorney general may recover costs and
312315 reasonable attorney's fees incurred in bringing the action and
313316 reasonable investigative costs incurred in relation to the action.
314317 SECTION 4. (a) Mindful of Leavitt v. Jane L., 518 U.S. 137
315318 (1996), in which in the context of determining the severability of a
316319 state statute the United States Supreme Court held that an explicit
317320 statement of legislative intent is controlling, it is the intent of
318321 the legislature that every provision, section, subsection,
319322 sentence, clause, phrase, or word in this Act, and every
320323 application of the provisions in this Act, are severable from each
321324 other.
322325 (b) If any application of any provision in this Act to any
323326 person, group of persons, or circumstances is found by a court to be
324327 invalid or unconstitutional, the remaining applications of that
325328 provision to all other persons and circumstances shall be severed
326329 and may not be affected. All constitutionally valid applications
327330 of this Act shall be severed from any applications that a court
328331 finds to be invalid, leaving the valid applications in force,
329332 because it is the legislature's intent and priority that the valid
330333 applications be allowed to stand alone.
331334 (c) If any court declares or finds a provision of this Act
332335 facially unconstitutional, when discrete applications of that
333336 provision can be enforced against a person, group of persons, or
334337 circumstances without violating the United States Constitution and
335338 Texas Constitution, those applications shall be severed from all
336339 remaining applications of the provision, and the provision shall be
337340 interpreted as if the legislature had enacted a provision limited
338341 to the persons, group of persons, or circumstances for which the
339342 provision's application will not violate the United States
340343 Constitution and Texas Constitution.
341344 (d) The legislature further declares that it would have
342345 enacted this Act, and each provision, section, subsection,
343346 sentence, clause, phrase, or word, and all constitutional
344347 applications of this Act, irrespective of the fact that any
345348 provision, section, subsection, sentence, clause, phrase, or word,
346349 or applications of this Act, were to be declared unconstitutional.
347350 (e) If any provision of this Act is found by any court to be
348351 unconstitutionally vague, the applications of that provision that
349352 do not present constitutional vagueness problems shall be severed
350353 and remain in force.
351354 (f) No court may decline to enforce the severability
352355 requirements of Subsections (a), (b), (c), (d), and (e) of this
353356 section on the ground that severance would rewrite the statute or
354357 involve the court in legislative or lawmaking activity. A court
355358 that declines to enforce or enjoins a state official from enforcing
356359 a statutory provision does not rewrite a statute, as the statute
357360 continues to contain the same words as before the court's decision.
358361 A judicial injunction or declaration of unconstitutionality:
359362 (1) is nothing more than an edict prohibiting
360363 enforcement that may subsequently be vacated by a later court if
361364 that court has a different understanding of the requirements of the
362365 Texas Constitution or United States Constitution;
363366 (2) is not a formal amendment of the language in a
364367 statute; and
365368 (3) no more rewrites a statute than a decision by the
366369 executive not to enforce a duly enacted statute in a limited and
367370 defined set of circumstances.
368- SECTION 5. Chapter 143A, Civil Practice and Remedies Code,
369- as added by this Act, applies only to a cause of action that accrues
370- on or after the effective date of this Act.
371+ SECTION 5. (a) Chapter 143A, Civil Practice and Remedies
372+ Code, as added by this Act, applies only to an action taken on or
373+ after the effective date of this Act.
374+ (b) A person who was a user, as defined by Section 143A.001,
375+ Civil Practice and Remedies Code, as added by this Act, before the
376+ effective date of this Act may bring an action under Section
377+ 143A.007, Civil Practice and Remedies Code, as added by this Act, to
378+ remedy censorship of the user's ability to publish or receive
379+ expression that occurred before the effective date of this Act if
380+ the censorship continues after this Act takes effect and violates
381+ Chapter 143A, Civil Practice and Remedies Code, as added by this
382+ Act.
371383 SECTION 6. This Act takes effect on the 91st day after the
372384 last day of the legislative session.
385+ * * * * *