Law / United States / 
Florida
Florida SB 7072 (2021), unlawful acts and practices by social media platforms and deplatforming of political candidates
Fla. Stat. §§ 501.2041, 106.072
A transparency and process rule binding private bodies.
As of .
What it requires
- A federal court's preliminary injunction of orders the Attorney General of Florida, the members of the Florida Elections Commission and a Deputy Secretary of the Department of Management Services to take no steps to enforce section 501.2041 or section 106.072 until otherwise ordered, so read the duties below as context for a law that those officials are enjoined from enforcing. The order is addressed to those officials, and section 501.2041(6) separately gives a user a private cause of action for violations of paragraph (2)(b) and subparagraph (2)(d)1.
- Publish the standards, including detailed definitions, you use or have used for determining how to censor, deplatform and shadow ban, and apply them in a consistent manner among your users.
- Tell each user about any change to your user rules, terms and agreements before you implement it, and do not change them more than once every 30 days.
- When you censor or shadow ban a user's content or deplatform a user, notify the user in writing, by e-mail or direct electronic notification delivered within 7 days after the censoring action, with a thorough rationale and a precise and thorough explanation of how you became aware of the content, including the algorithms used, if any, to identify or flag it. You need not notify a user whose censored content is obscene.
- Give a user, on request, the number of other individual platform participants who were shown the user's content or posts, and provide a mechanism to make the request.
- Categorize the algorithms you use for post-prioritization and shadow banning, let a user opt out of those categories to see sequential or chronological posts and content, give users an annual notice on the use of those algorithms and reoffer the opt-out annually.
- Do not apply post-prioritization or shadow banning algorithms to content posted by or about a user you know to be a candidate, from the date of qualification to the date of the election or the date the candidate ceases to be a candidate, and give each user a method to be identified as a qualified candidate that lets you confirm the qualification on the Division of Elections or supervisor of elections website. Post-prioritization based on payments by the candidate or a third party is not a violation.
- Do not willfully deplatform a candidate for office whom you know to be a candidate, from the date of qualification to the date of the election or the date the candidate ceases to be a candidate.
- Let a user you have deplatformed access or retrieve all of the user's information, content, material and data for at least 60 days after the user receives your notification.
- Do not take any action to censor, deplatform or shadow ban a journalistic enterprise based on the content of its publication or broadcast, unless the content is obscene.
- Inform a candidate of the in-kind contribution when you willfully provide free advertising for the candidate.
If you get it wrong
Private right of actionYes
Penalty structure
Section 106.072(3) provides, on a finding of a violation of subsection (2) by the Florida Elections Commission and in addition to the remedies in sections 106.265 and 106.27, a fine of $250,000 per day for a candidate for statewide office and $25,000 per day for a candidate for other offices; the figure shown is the higher tier.
- Rule
- Per violation only
- As of
- Currency
- USD
- Per violation unit
- Day
- Per violation amount
- 250,000
Over one month of continuous breach, USD 7,610,000.
Statutory damages
In a private cause of action under paragraph (2)(b) or subparagraph (2)(d)1, the court may award up to $100,000 in statutory damages per proven claim, actual damages, punitive damages if aggravating factors are present, equitable relief including injunctive relief, and, if the user was deplatformed in violation of paragraph (2)(b), costs and reasonable attorney fees.
- As of
Who enforces it
Enforcement body
The Department of Legal Affairs may investigate and bring a civil or administrative action under part II of chapter 501 for a violation of section 501.2041; the Florida Elections Commission finds a violation of section 106.072(2) and the platform may then be fined under section 106.072(3); a user may bring a private cause of action for violations of paragraph (2)(b) and subparagraph (2)(d)1 of section 501.2041.
Settledness
- As of
- Case link
- https://www.supremecourt.gov/opinions/23pdf/22-277_d18f.pdf
- Case citation
- Moody v. NetChoice, LLC, 603 U.S. 707 (2024)
- Under challenge
- Yes
- Open questions
- Which applications of sections 501.2041 and 106.072 are unconstitutional, and do they substantially outweigh the constitutional ones, once the full range of covered platforms and functions is weighed?
- Do the notification and explanation duties in section 501.2041(2)(d) and (3) unduly burden the expression of a covered platform under Zauderer for each function it covers?
What it reaches
Obligation class
Disclosure, Prohibition
Applicability criteria
- As of
- Combinator
- All of
- Criteria
- Any information service, system, Internet search engine, or access software provider that provides or enables computer access by multiple users to a computer server, including an Internet platform or a social media site.
- Operates as a sole proprietorship, partnership, limited liability company, corporation, association, or other legal entity.
- Does business in the state.
- Satisfies at least one of the following thresholds: has annual gross revenues in excess of $100 million, as adjusted in January of each odd-numbered year to reflect any increase in the Consumer Price Index, or has at least 100 million monthly individual platform participants globally.
What this law does
Florida Statutes section 501.2041 provides that a social media platform that fails to comply with any provision of its subsection (2) commits an unfair or deceptive act or practice. A social media platform must publish the standards, including detailed definitions, it uses or has used for determining how to censor, deplatform, and shadow ban. A social media platform must apply censorship, deplatforming, and shadow banning standards in a consistent manner among its users on the platform.
A social media platform must inform each user about any change to its user rules, terms, and agreements before implementing it, and may make changes only once in each 30-day period. A social media platform may not censor or shadow ban a user's content or material or deplatform a user without notifying the user who posted or attempted to post the content or material.
The notification must be in writing, be delivered by electronic mail or direct electronic notification within 7 days after the censoring action, and include a thorough rationale and a precise and thorough explanation of how the platform became aware of the content, including a thorough explanation of the algorithms used, if any, to identify or flag it. A social media platform is not required to notify a user if the censored content or material is obscene.
A social media platform must provide a mechanism that allows a user to request, and must provide on request, the number of other individual platform participants who were provided or shown the user's content or posts. A social media platform must categorize the algorithms it uses for post-prioritization and shadow banning and allow a user to opt out of those algorithm categories to allow sequential or chronological posts and content.
A social media platform must give users an annual notice on the use of algorithms for post-prioritization and shadow banning and reoffer the opt-out annually. A social media platform may not apply or use post-prioritization or shadow banning algorithms for content and material posted by or about a user who is known to be a candidate, beginning on the date of qualification and ending on the date of the election or the date the candidate ceases to be a candidate.
A social media platform must allow a user who has been deplatformed to access or retrieve all of the user's information, content, material, and data for a minimum of 60 days after the user receives the notification. A social media platform may not take any action to censor, deplatform, or shadow ban a journalistic enterprise based on the content of its publication or broadcast. That paragraph does not apply if the content or material is obscene.
Section 106.072 bars a social media platform from willfully deplatforming a candidate for office who is known by the platform to be a candidate, beginning on the date of qualification and ending on the date of the election or the date the candidate ceases to be a candidate. On a finding of a violation of section 106.072(2) by the Florida Elections Commission, the platform may be fined $250,000 per day for a candidate for statewide office and $25,000 per day for a candidate for other offices.
A platform that willfully provides free advertising for a candidate must inform the candidate of the in-kind contribution. Section 501.2041(5) authorizes the department to investigate a suspected violation of the section and to bring a civil or administrative action pursuant to part II of chapter 501. In part II of chapter 501, the department means the Department of Legal Affairs.
A user may bring a private cause of action only for violations of paragraph (2)(b) or subparagraph (2)(d)1, and the court may award a maximum of $100,000 in statutory damages per proven claim, actual damages, punitive damages if aggravating factors are present, equitable relief, and, if the user was deplatformed in violation of paragraph (2)(b), costs and reasonable attorney fees.
Section 501.2041 may be enforced only to the extent not inconsistent with federal law and with section 230(e)(3) of title 47. Section 106.072 may be enforced only to the same extent. Chapter 2022-267, Laws of Florida, revised the definition of social media platform in section 501.2041. The Eleventh Circuit reported that, after the onset of the litigation, the State repealed from that definition the exemption for a company that owns and operates a theme park or entertainment complex.
The defendants in the federal suit were the Attorney General of Florida, the members of the Florida Elections Commission, and a Deputy Secretary of the Florida Department of Management Services, all in their official capacities. On the federal district court ordered the named defendants to take no steps to enforce section 106.072 or 501.2041 until otherwise ordered. On the Eleventh Circuit affirmed that preliminary injunction in part and vacated and remanded in part.
The Eleventh Circuit vacated the injunction as to the standards disclosure in paragraph (2)(a), the notice of rule changes in paragraph (2)(c), the view-count provision in paragraph (2)(e), the user-data access provision in paragraph (2)(i) and subsection 106.072(4). On the Supreme Court vacated the Eleventh Circuit's judgment and remanded the case for further proceedings.
When LexLint raises it
When your app profile says your app operates a social platform or reuses other publishers' content.