Bill Text: TX SB5 | 2021 | 87th Legislature 2nd Special Session | Engrossed
Bill Title: Relating to complaint procedures and disclosure requirements for, and to the censorship of users' expressions by, social media platforms.
Spectrum: Partisan Bill (Republican 11-0)
Status: (Engrossed - Dead) 2021-09-02 - Co-author authorized [SB5 Detail]
Download: Texas-2021-SB5-Engrossed.html
| By: Hughes, et al. | S.B. No. 5 | |
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| relating to complaint procedures and disclosure requirements for, | ||
| and to the 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) social media platforms are akin to 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 | ||
| (2) social media platforms 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. The term includes a person who has | ||
| a social media platform account that the social media platform has | ||
| disabled or locked. | ||
| 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 to block, ban, remove, deplatform, | ||
| demonetize, de-boost, restrict, deny equal access or visibility to, | ||
| or otherwise discriminate against expression. | ||
| (2) "Expression" means any word, music, sound, still | ||
| or moving image, number, or other perceivable communication. | ||
| (3) "Receive," with respect to an expression, means to | ||
| read, hear, look at, access, or gain access to the expression. | ||
| (4) "Social media platform" has the meaning assigned | ||
| by Section 120.001, Business & Commerce Code. | ||
| (5) "Unlawful expression" means an expression that is | ||
| unlawful under the United States Constitution, federal law, the | ||
| Texas Constitution, or the laws of this state. | ||
| (6) "User" means a person who posts, uploads, | ||
| transmits, shares, or otherwise publishes or receives expression, | ||
| through a social media platform. The term includes a person who has | ||
| a social media platform account that the social media platform has | ||
| disabled or locked. | ||
| Sec. 143A.002. CENSORSHIP PROHIBITED. (a) A social media | ||
| platform 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 the social media platform 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 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 contracts 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 | ||
| that functionally has more than 50 million active users in the | ||
| United States in a calendar month. | ||
| (d) This chapter does not apply to censorship of an | ||
| expression that is the subject of a referral or request from an | ||
| organization with the purpose of preventing the sexual exploitation | ||
| of children and protecting survivors of childhood sexual abuse from | ||
| ongoing harassment. | ||
| (e) This chapter does not apply to censorship of an | ||
| expression that directly incites criminal activity or consists of | ||
| specific threats of violence targeted against a person or group | ||
| because of their race, color, disability, religion, national origin | ||
| or ancestry, age, sex, or status as a peace officer or judge. | ||
| Sec. 143A.005. LIMITATION ON EFFECT OF CHAPTER. This | ||
| chapter does not subject a social media platform to damages or other | ||
| legal remedies to the extent the social media platform is protected | ||
| from those remedies under federal law. | ||
| Sec. 143A.006. CONSTRUCTION OF CHAPTER. (a) This chapter | ||
| does not prohibit a social media platform from: | ||
| (1) censoring expression that the social media | ||
| platform is specifically authorized to censor by federal law; or | ||
| (2) censoring unlawful expression. | ||
| (b) This chapter may not be construed to prohibit or | ||
| restrict a social media platform from authorizing or facilitating a | ||
| user's ability to censor specific expression at the request of that | ||
| user. | ||
| (c) This chapter may not be construed to limit or expand | ||
| intellectual property law. | ||
| Sec. 143A.007. USER REMEDIES. (a) A user may bring an | ||
| action against a social media platform that violates this chapter | ||
| with respect to the user. | ||
| (b) If the user proves that the social media platform | ||
| 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 fails to promptly comply with | ||
| a court order in an action brought under this section, the court | ||
| shall hold the social media platform in contempt and shall use all | ||
| lawful measures to secure immediate compliance with the order, | ||
| including daily penalties sufficient to secure immediate | ||
| compliance. | ||
| 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. | ||
| (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. | ||
| SECTION 4. (a) Mindful of Leavitt v. Jane L., 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 Act, and every | ||
| application of the provisions in this Act, are severable from each | ||
| other. | ||
| (b) If any application of any provision in this Act 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 Act 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. | ||
| (c) If any court declares or finds a provision of this Act | ||
| 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 as if the legislature had enacted a provision limited | ||
| 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 Act, and each provision, section, subsection, | ||
| sentence, clause, phrase, or word, and all constitutional | ||
| applications of this Act, irrespective of the fact that any | ||
| provision, section, subsection, sentence, clause, phrase, or word, | ||
| or applications of this Act, were to be declared unconstitutional. | ||
| (e) 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. | ||
| (f) No court may decline to enforce the severability | ||
| requirements of Subsections (a), (b), (c), (d), and (e) of this | ||
| section 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 does not rewrite a statute, as the statute | ||
| continues to contain the same words as 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 5. Chapter 143A, Civil Practice and Remedies Code, | ||
| as added by this Act, applies only to a cause of action that accrues | ||
| on or after the effective date of this Act. | ||
| SECTION 6. This Act takes effect on the 91st day after the | ||
| last day of the legislative session. | ||
