New Jersey-2024-S1336-Introduced

An Act establishing a cause of action against social media websites for the censoring or banning of certain users and supplementing Title 56 of the Revised Statutes.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. As used in P.L. , c. (C. ) (pending before the Legislature as this bill):

"Algorithm" means a mathematical set of rules that specify how a group of data that will assist in ranking search results and maintaining order or that is used in sorting or ranking content or material based on relevancy or other factors instead of using published time or chronological order of such content or material behavior.

"Anonymous content or user ban" means action by a social media website, through any means, whether the action is determined by a natural person or an algorithm, to limit or eliminate the exposure of a user or content or material posted by a user to other users of the social media website. "Anonymous content or user ban" includes acts of banning by a social media website that are not readily apparent to a user.

"Candidate" means an individual seeking election to a public office of the State, or of a county or municipality at any election. "Candidate" includes an individual who runs unopposed, loses an election, withdraws from an election, or raises or spends money, or both, to run for elected office but does not appear on the ballot.

"Censor" means any action taken by a social media website to delete, regulate, restrict, edit, alter, inhibit the publication or republication of, suspend a right to post, remove, or post an addendum to any content or material posted by a user. "Censor" includes actions to inhibit the ability of a user to be viewable by or to interact with another user of the social media website.

"Consumer Price Index" means the consumer price index for all urban consumers in the New York City and Philadelphia areas as reported by the federal Department of Labor or successor index.

"Office" means the New Jersey Office of the Attorney General in the Department of Law and Public Safety.

"Journalistic enterprise" means any entity:

a. publishing words, audio, or video online and making such published material available to Internet users;

b. operating a cable television channel providing content for cable television subscribers; or

c. operating under a broadcast license issued by the Federal Communications Commission.

"Obscene" means material that a reasonable person, applying contemporary community ethical standards, would find that, taken as a whole, the dominant theme of the material appeals to prurient interests.

"Post prioritization" means action by a social media website to place, feature, or prioritize certain content or material ahead of others in a newsfeed, view, or Internet search results. "Post prioritization" does not include post prioritization of content and material based on payments by a third party, including other users, to the social media website.

"Selective suspension" means the action or practice by a social media website to permanently delete or ban a user or to temporarily delete or ban a user for more than 60 days.

"Social media website " means any information service, system, Internet search engine, or access software provider that does business in the State of New Jersey, and provides or enables computer access by multiple users to a computer server, including an Internet website or a social media website, or both, which is a sole proprietorship, partnership, limited liability company, corporation, association, or other legal entity that is organized or operated for the profit or financial benefit of its shareholders or other owners, and that satisfies one or more of the following thresholds:

a. is open to the public;

b. has annual gross revenues in excess of $100 million, as adjusted in January of every odd-numbered year to reflect any increase in the Consumer Price Index; and

c. has at least 100 million monthly users globally.

"User" means a person who has an account on a social media website, regardless of whether the person posts or has posted content or material to the social media website.

2. It shall be an unlawful practice and violation of the New Jersey consumer fraud act, P.L.1960, c.39 (C.56:8-1 et seq.), if a social media website fails to comply with the requirements set forth in this section. A social media website shall:

a. publish the standards, including detailed definitions, it uses or has used for determining how to censor, selectively suspend, or implement anonymous content or user ban;

b. apply censorship, selectively suspend, and anonymous content or user banning standards in a consistent manner among its users on the platform;

c. notify users about any changes to user rules, terms, and agreements prior to implementing such changes;

d. not censor a user's content or material or selectively suspend a user from the social media website without providing notification to the user who posted or attempted to post the content or material, or in a way that violates State deceptive and unfair trade practices;

e. provide a mechanism for users to request the number of other users who were actually provided or shown the requesting user's content or posts and provide users with the number of other users who were actually provided or shown that content or posts upon request;

f. categorize algorithms used for post prioritization and anonymous content or user banning and allow users to opt-out of post prioritization and anonymous content or user banning algorithm categories to allow sequential or chronological posts and content;

g. provide users with an annual notice on the use of algorithms used for post prioritization and anonymous content or user banning and reoffer annually the opt-out opportunity provided in subsection f. of this section;

h. not apply or use post prioritization or anonymous content or user banning algorithms for content and material posted by or about a user who is known by the social media website to be a candidate for office from the date of qualification through the date of the election or the date the candidate ceases to be a candidate before the date of election. Post prioritization of certain content or material from or about a candidate based on payments to the social media website by the candidate for office or a third party shall not be a violation of this paragraph;

i. provide users with a method to identify themselves as qualified candidates and may confirm the candidate's qualification by reviewing the New Jersey Department of State's Division of Elections website;

j. allow a user who has been selectively suspended to access or retrieve all of the user's information, content, material, and data for at least 60 days following the date of being selectively suspended; and

k. provide journalistic enterprises with a method to identify themselves as such; and

l. not knowingly take any action to censor, selectively suspend, or anonymous content or user ban a journalistic enterprise based on the content of its publication or broadcast. Post prioritization of certain journalistic enterprise content based on payments to the social media website by such journalistic enterprise is not a violation of this section.

3. a. A social media website shall notify a user prior to censoring the user's content or material. The notification shall:

(1) be in writing;

(2) be delivered via electronic mail or direct electronic notification to the user within 30 days of the censoring action;

(3) include a thorough rationale explaining why the social media website will be censoring the user; and

(4) include a precise and thorough explanation of how the social media website became aware of the censored content or material, including a thorough explanation of the algorithms used, if any, to identify or flag the user's content or material as objectionable.

b. Notwithstanding any other provisions of P.L. , c. (C. ) (pending before the Legislature as this bill), a social media website shall not be required to notify a user if the censored content or material is obscene.

4. In addition to the relief provided under the New Jersey consumer fraud act, P.L.1960, c.39 (C.56:8-1 et seq.), a user may bring a private cause of action against a social media website for a violation of subsection b. or d., or both, of section 2 of P.L. , c. (C. ) (pending before the Legislature as this bill). In a private cause of action brought against a social media website pursuant to this section, the court may award all of the following damages to the user:

a. up to $100,000 in statutory damages per proven claim;

b. actual damages;

c. punitive damages if aggravating factors are present;

d. other forms of equitable relief; and

e. costs and reasonable attorney fees, if the user was selectively suspended in violation of subsection b. of section 2 of P.L. , c. (C. ) (pending before the Legislature as this bill).

5. As provided for in subsection h. of section 2 of P.L. , c. (C. ) (pending before the Legislature as this bill), a social media website shall not knowingly apply or use post prioritization or anonymous content or user banning algorithms for content and material posted by or about a user who is known by the social media website to be a candidate. Upon a finding of a violation of subsection h. of section 2 of P.L. , c. (C. ) (pending before the Legislature as this bill) by the office, the social media website may be fined by the Attorney General in the amount of $100,000 per day for Statewide candidates and $10,000 per day for other candidates for any unlawful selective suspension. A social media website that knowingly provides free advertising for a candidate shall report the advertising as an in-kind contribution to the candidate under State election laws. Posts, content, material, and comments by candidates that are shown on the platform in the same or similar way as other user's posts, content, material, and comments shall not be considered free advertising.

6. In an investigation by the office into acts of anonymous content or user banning by a social media website, the office has the power to subpoena the social media website for any algorithm related to anonymous content or user banning and any related documentation used within the previous 24 months related to anonymous content or user banning.

7. Nothing in P.L. , c. (C. ) (pending before the Legislature as this bill) shall be construed to be inconsistent with federal law, to the extent authorized under 47 U.S.C. s.230(e)(3), and notwithstanding any other provision of State or local law.

8. This act shall take effect immediately.

STATEMENT

This bill establishes a cause of action against social media websites for the censoring or banning of certain users.

This bill authorizes the Office of the New Jersey Attorney General to bring an action under the New Jersey consumer fraud act against a social media website if the social media website fails to comply with the requirements set forth in the bill. Among other requirements enumerated in the bill, a social media website is to publish the standards it uses or has used for determining how to censor, "selectively suspend," and implement an "anonymous content or user ban," as these terms are defined in the bill, users and apply censorship, selective suspensions, and anonymous content or user banning standards in a consistent manner among its users on the platform.

Additionally, social media websites are not to be permitted to apply or use post prioritization or anonymous content or user banning algorithms for content and material posted by or about a user who is known by the social media website to be a candidate for office or a journalistic enterprise, as those terms are defined in the bill.

Finally, the bill establishes causes of actions along with setting damages for violations of the bill, in accordance with federal, State, and local laws.