June 1, 2021
ShareWhat does Florida’s “Social Media” Bill mean for content creators?
While SB 7072 has garnered a lot of headlines for the hotly contested “candidate” deplatforming provision, the private right to action for citizens could have tremendous ramifications for Florida-based content creators.
The section of the bill that addresses barring social media platforms from deplatforming bona fide candidates for public office is certainly headed for litigation. This section is likely unconstitutional as it compels private companies to support speech they do not agree with. While this section will likely be stayed via an injunction, the rest of the bill can remain in force.
In my practice, I represent many content creators and I have witnessed firsthand the growing frustration with the opaque and arbitrary methods of enforcement of community guidelines. Platforms profit from the traffic created by content creators. In the bargain, creators build a livelihood based on access to their audience of the platforms. At present, that livelihood can be snatched away with no warning and no explanation. No due process exists for a meaningful appeal. No specific explanations are provided. Content creators are simply referred back to the vaguely worded community guidelines, not even a section, usually just a reference to the entire document.
SB 7072 looks to change that.
Section 501.2041 states social media platforms that censors, deplatforms, or shadow bans a user and fails to comply with any of the provisions of this new law has is committed an unfair or deceptive act or practice under the law.
First, 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” and it must “apply censorship, deplatforming, and shadow banning standards in a consistent manner among its users on the platform.” My clients are constantly noting that video X got banned and another user posts the same video and it gets a million views. Detailed rules that are applied consistently is simply fair dealing.
Importantly, if a user’s material is banned, the platform must provide a “thorough rationale” and also how the platform became aware of the violation. A common complaint from my clients is how can they improve their content creation and not violate the guidelines if they are never afforded a thorough explanation of what they did wrong. Everyone understands this basic concept of fairness.
Section 6 is the real teeth of the matter for content creators. If a content creator is censored in a way that is inconsistent with other users on the platform, they can sue the platform and the court may award the following remedies to the user:
(a) Up to $100,000 in statutory damages per proven claim.
(b) Actual damages.
(c) If aggravating factors are present, punitive damages.
(d) Other forms of equitable relief, including injunctive relief.
(e) If the user was deplatformed in violation of paragraph (2)(b), costs and reasonable attorney fees.
I already have several clients considering legal action once the bill becomes effective on July 1, 2021.
This right to private action and the application of unfair and deceptive trade practices is a powerful shift in power for content creators. While this provision may not get the headlines of the provisions about political candidates, this section is a game changer.
Timothy Shields is a Partner at Kelley Kronenberg focusing his practice on Technology, Data Privacy, and Social Media Representation. Tim serves technology companies as general counsel for a flat monthly rate based on the company’s needs starting at $1300/month.
Contact Timothy Shields at:
Phone: 833-830-HELP (4357)
Email: tshields@kklaw.com