November 30, 2022

Florida social media law blocks ban on political candidates

On May 24, 2021, Florida Governor DeSantis signed Senate Bill 7072 (the Act), restricting the ability of social media companies to “misrepresent” a candidate for public office in Florida. See Florida Stat. §§ 106.072, 501.2041. While the law is primarily aimed at prohibiting the deliberate censorship of political candidates, the law has potential ramifications for social media companies, businesses and individuals beyond the political realm. The law defines “deplatform” as “the action or practice of a social media platform1 permanently remove or ban a user or temporarily remove or ban a user from the social media platform for more than 14 days.

With regard to political candidates, the Act applies from the date the candidate qualifies for a position until the date of the election or when the candidate ceases to be a candidate. When this law comes into force on July 1, 2021, the law authorizes the Florida Elections Commission to impose a fine of offenders of $ 250,000 per day for a candidate for statewide office and $ 25,000 per day. day for a candidate for “other positions”.2

New requirements under Florida’s Deceptive and Unfair Marketing Practices Act

In addition to a regulatory fine, the law creates a new basis for a claim under the Florida Deceptive and Unfair Marketing Practices Act (FDUTPA) when a social media platform censors or prohibits content or content. a user’s material or a user’s platform for social media. inconsistently between users or without notice to the user.

The definitions of “censorship” and “phantom ban” are broad. “Censorship includes any action taken by a social media platform to remove, regulate, restrict, edit, modify, prevent the publication or repost of, suspend the right to post, remove or post addendum to any content or material posted by a user. The term also includes actions aimed at preventing a user from being visible or interacting with another user of the social media platform.

“Shadow ban means the action of a social media platform, by 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 platform. This term includes acts of phantom banning by a social media platform that are not readily apparent to a user. “

It is important to note that under the new law a violation of FDUTPA can occur even if the individual is not running for public office. In addition, the Act only applies to “users”, defined as “a person who resides or is domiciled in that state“.

The new law also requires, among other things, social media companies to:

  • Publish standards, including detailed definitions that it uses or has used to determine how to censor, deplatform and ban shadow;

  • Notify users of any changes to its rules of use, conditions and agreements, before implementing the changes and prohibiting changes more than once every 30 days; and

  • Provide users with an annual notice on the use of algorithms for post-prioritization and shadow ban.

The Florida Department of Legal Affairs has the authority to investigate alleged violations of the new FDUTPA provisions and enforce them through civil or administrative action.

Private causes of action

The Act creates a private cause of action for two violations and allows the user to recover up to $ 100,000 in statutory damages per proven claim, actual damages, punitive damages if there are aggravating factors, other forms of equitable relief and, in some cases, reasonable costs and expenses. attorney fees. The first private right of action is created when it is alleged that the social media company has not “applied the standards of censorship, deplatform and phantom ban consistently among its users on the platform.” . The law requires a social media platform to “publish the standards, including detailed definitions, that it uses or has used to determine how to censor, remove the platform, and ban the shadow.” However, the Act does not set out a standard for uniformity or a method of measurement.

The law also creates a second private right of action for censorship, phantom banning, or removal from a user’s platform “without notifying the user who posted or attempted to post the content or material. “. Notice to the user must be (1) in writing, (2) delivered by email or other electronic notification within seven days of the censorship action, (3) include the rationale for the censorship action, and (4) include a detailed explanation of how the social media platform became aware of the censored content or material, including a detailed explanation of the algorithms used, if any, to identify or report the content or user’s material as objectionable. The required notice raises questions regarding the shadow ban. While the definitions of “censorship” and “deplatform[ing]Are generally aimed at individual users, “shadow banning” includes the action of an algorithm that can limit the exposure of content or material.

Some aspects of the Law do not seem clear. Article 2 of the law qualifies a violation of “any of the provisions of this paragraph” as “an act or an unfair or deceptive practice as specified in the FDUTPA,3 which includes a private right of action for any deceptive act or practice4 and its own exemptions.5 In contrast, article 6 of the law grants a private right of action only for violations of the consistency and notification provisions, creates its own remedies and contains its own exceptions.6

Potential unconstitutionality and preemption by existing federal law

Florida law may conflict with the First Amendment and Federal Communications Decency Act (CDA), 47 USC § 230 (c) (1), which the Florida Supreme Court has held applicable in the courts of Florida and prevail over Florida The CDA provides that “[n]o the provider or user of an interactive computer service is considered to be the publisher or speaker of any information provided by another information content provider. The CDA offers “broad federal immunity from any cause of action that would hold service providers liable for information from a third party user of the service.”8 The CDA also provides that a provider of an interactive computer service cannot be held responsible for “any action voluntarily taken in good faith to restrict the access or availability of material that the provider or user considers obscene. , obscene, lustful, dirty, excessively violent, harassing or otherwise objectionable, whether or not such material is constitutionally protected. 47 USC § 230 (c) (2) (A). The CDA defines an “interactive computer service” as “any information service, system or provider of access software that provides or allows multiple users to access a computer server, specifically including a service or system that provides Internet access ”.9

Federal Court decisions have ruled that Twitter and Facebook are interactive computer services protected by the LOC.ten In turn, the CDA defines “information content provider” as “any person or entity who is responsible, in whole or in part, for the creation or development of information provided via the Internet or other interactive IT service. “.11 Section 230 (c) (1) of “CDA prohibits claims by a plaintiff where (1) the defendant is a provider or user of an interactive computing service; (2) the relevant content contains information provided by another information content provider; and (3) the purpose of the complaint is to hold the respondent accountable for performing the traditional editorial functions of a publisher, such as deciding to publish, remove, postpone or modify content. “12 Courts have always found grounds for CDA immunity even when discrimination is alleged13 or the social media company has not followed its own terms and conditions14 and treated some speech unevenly.15

Pending Litigation Regarding New Florida Law

Litigation has already followed the challenge of Florida’s new social media law, alleging that the law is unconstitutional and conflicts with, and is therefore preempted by, federal law.16 The district court presiding over the dispute has already expedited it, setting a hearing on a preliminary injunction for June 28. Notably, the Florida legislature may have taken the conflict with federal law into account by adding into law that the new Florida law “can only be enforced to the extent that it is not inconsistent with the law. Only time will tell if Florida’s new law will pass a judicial review.

1 The law targets social media companies with annual gross revenues in excess of $ 100 million or at least 100 million individual monthly platform participants around the world, and exempts theme parks.

2 “Other office” is not defined, so it may include candidates for federal office, depending on whether or not the Florida Election Commission has the jurisdiction to impose such a fine.

3 § 501.204, Florida Stat.

4 § 501.211, Florida Stat.

5 § 501.212, Florida Stat.

6 Legislative history suggests a more limited private right of action. Invoice analysis and tax impact study, SB 7072, FLA. GOVERNMENTAL MONITORING AND ACCOUNTABILITY COMMITTEE (April 16, 2021).

seven Doe v. Am. Online, Inc., 783 So. 2d 1010, 1017 (Florida 2001).

8 Almeida vs., 456 F.3d 1316, 1321 (11th Cir. 2006) (citing Zeran v. Am. Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997)).

9 47 USC § 230 (f) (2).

ten See Mezey v. Twitter, Inc., n ° 1: 18-cv-21069-KMM, 2018 US Dist. LEXIS 121775, at * 3 (SD Fla. July 19, 2018) (“Twitter – as a platform that transmits, receives, displays, organizes and hosts content – is an interactive IT service.”); Klayman vs. Zuckerberg, 753 F.3d 1354, 1357-58, (DC Cir. 2014) (Facebook is an interactive computer service under the CDA).

11 47 USC § 230 (f) (3).

12 Mezey vs. Twitter, Inc., Case No.1: 18-CV-21069, 2018 US Dist. LEXIS 121775, at * 2 (SD Fla. July 19, 2018).

13 Barry Cohen v Google, LLC, 18-24591-CIV-GRAHAM / MCALILEY, (SD Fla. June 26, 2019) DE 36.

14 Bennett v Google, LLC, 882 F.3d 1163 (DC Cir. 2018)

15 Noah v. AOL Time Warner Inc., 261 F. Supp. 2d 532, 535-40 (ED Va. May 15, 2003), confirmed, 2004 US App. LEXIS 5495, at * 1 (4th Cir. November 14, 2003).

16 Netchoice, LLC etc. et al vs. Ashley Brooke Moody, etc. et al., Civil Action No. 21-cv-00220-RH-MAF (US District Court, ND Fla. Filed May 27, 2021).

© 2021 Greenberg Traurig, LLP. All rights reserved. Revue nationale de droit, volume XI, number 173