BillCam

Amended IN Senate March 14, 2022

CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION

Senate Bill

No. 1390

Introduced by Senator Pan

February 18, 2022

An act to amend Section 22580 add Chapter 22.7 (commencing with Section 22650) to Division 8 of the Business and Professions Code, relating to business.

LEGISLATIVE COUNSEL'S DIGEST

SB 1390, as amended, Pan. Businesses: internet privacy: minors. Social media platforms: amplification of harmful content.

Existing law prohibits a person, among others, from making or disseminating in any advertising device, or in any manner or means whatsoever, including over the internet, any statement concerning real or personal property or services that is untrue or misleading, as specified. Existing law defines “libel” as a false and unprivileged publication, including by writing, printing, or picture, that exposes any person to hatred, contempt, and ridicule, among other things.

This bill would prohibit a social media platform, as defined, from amplifying harmful content in a manner that results in a user viewing harmful content from another user with whom the user did not choose to share a connection. The bill would define “amplify” to mean to take action, either through manual or automatic means, that has the effect of increasing the viewership of certain material. The bill would provide that harmful content includes libel or slander, as specified, threats of imminent violence against governmental entities, and disinformation or misinformation, including, but not limited to, false or misleading information regarding medicine or vaccinations, false or misleading information regarding elections, and conspiracy theories.

This bill would require a social media platform to establish a complaint process for users to access within the platform to report harmful content they believe has been amplified, and track each complaint in a database that is shared with the Attorney General, as specified. The bill provides that a platform violates these provisions if the platform continues to amplify reported harmful content after 24 hours of receiving notice from the Attorney General that the platform was amplifying that harmful content.

This bill would authorize the enforcement of these provisions by civil action in a court of competent jurisdiction by the Attorney General and specify civil penalties to which violators would be subject. The bill would prohibit its provisions from being deemed to create a private right of action or limit any existing private right of action. The bill would exempt any information shared with the Attorney General pursuant to this chapter from disclosure under the California Public Records Act.

Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.

This bill would make legislative findings to that effect.

Existing law prohibits an operator of an internet website, online service, online application, or mobile application from marketing or advertising specified products or services, including, among other things, alcoholic beverages, firearms, and tobacco, to a minor who the operator has actual knowledge is using its internet website, online service, online application, or mobile application, if the marketing or advertising is specifically directed to that minor based upon information specific to that minor, as specified.

This bill would make nonsubstantive changes to that provision.

Digest Key Vote: MAJORITY Appropriation: NO Fiscal Committee: NOYES Local Program: NO

Bill Text

The people of the State of California do enact as follows:

SECTION 1. Chapter 22.7 (commencing with Section 22650) is added to Division 8 of the Business and Professions Code, to read:

CHAPTER 22.7. Amplification of Harmful Content

22650. For purposes of this chapter, the following definitions apply:

(a) “Amplify” means to take action, either through manual or automatic means, that has the effect of increasing the viewership of certain material.

(b) “Content” means media, including, but not limited to, text, images, videos, and groups of users that are created, posted, shared, or otherwise interacted with by users on a social media platform.

(c) “Harmful content” means content that may be characterized as any of the following:

(1) Libel or slander as defined in Part 2 (commencing with Section 43) of Division 1 of the Civil Code.

(2) Threats of imminent violence against governmental entities.

(3) Disinformation or misinformation, including, but not limited to, false or misleading information regarding medicine or vaccinations, false or misleading information regarding elections, and conspiracy theories.

(d) (1) “Social media platform” or “platform” means an internet-based service that is made available to residents of the state that generated at least one hundred million dollars ($100,000,000) in gross revenue during the preceding calendar year and allows individuals to do all of the following:

(A) Construct a public or semipublic profile within a bounded system created by the service.

(B) Create a list of other users with whom an individual shares a connection within the system.

(C) View and navigate a list of other users’ individual connections.

(2) “Social media platform” does not include any of the following:

(A) Email and direct messaging between users or groups of users.

(B) A comment section on a digital news internet website, or consumer reviews of products and services on an online commerce internet website.

(C) An internet-based subscription streaming service that is offered to consumers for the exclusive purpose of transmitting licensed media, including audio or video files, in a continuous flow from the internet-based service to the end user.

(D) Services that operate for the sole purpose of cloud storage or shared document or file collaboration.

(E) Services that operate for the sole purpose of providing, creating, or interacting with data visualization platforms, libraries, or hubs.

22651. (a) A social media platform shall not amplify harmful content in a manner that results in a user viewing harmful content from another user with whom the user did not choose to share a connection.

(b) (1) A social media platform shall establish a complaint process for a user to access within the platform to report harmful content the user believes has been amplified in violation of subdivision (a).

(2) A social media platform shall develop a database that tracks all harmful content complaints submitted by users, and shall share the database with the Attorney General. Each complaint listed in the database shall include a copy of the complaint and an image displaying the content that is the subject of the complaint.

(c) A social media platform violates this chapter if the platform continues to amplify reported harmful content after 24 hours of receiving notice from the Attorney General that the platform has violated subdivision (a).

22652. (a) Actions for relief pursuant to this chapter may be prosecuted exclusively in a court of competent jurisdiction in a civil action brought in the name of the people of the State of California by the Attorney General.

(b) A court may make any orders or judgments as may be necessary to prevent a violation of this chapter.

(c) A social media platform that violates this chapter shall be liable for a civil penalty not to exceed one hundred thousand dollars ($100,000), to be deposited in the General Fund, for each item of harmful content amplified in violation of this chapter.

(d) This chapter shall not be deemed to create a private right of action, or limit any existing private right of action.

22653. Any information shared with the Attorney General pursuant to this chapter shall be exempt from disclosure under the California Public Records Act (Division 10 (commencing with Section 7920.000) of Title 1 of the Government Code).

SEC. 2. The Legislature finds and declares that Section 1 of this act, which adds Section 22653 to the Business and Professions Code, imposes a limitation on the public’s right of access to the meetings of public bodies or the writings of public officials and agencies within the meaning of Section 3 of Article I of the California Constitution. Pursuant to that constitutional provision, the Legislature makes the following findings to demonstrate the interest protected by this limitation and the need for protecting that interest:

In order to protect the privacy of certain individuals that may have their personal information included in the database shared with the Attorney General, it is necessary that some information be kept confidential.

SECTION 1.Section 22580 of the Business and Professions Code is amended to read:22580.

(a)An operator of an internet website, online service, online application, or mobile application directed to minors shall not market or advertise a product or a service described in subdivision (i) on its internet website, online service, online application, or mobile application directed to minors.

(b)An operator of an internet website, online service, online application, or mobile application:

(1)Shall not market or advertise a product or service described in subdivision (i) to a minor who the operator has actual knowledge is using its internet website, online service, online application, or mobile application and is a minor, if the marketing or advertising is specifically directed to that minor based upon information specific to that minor, including, but not limited to, the minor’s profile, activity, address, or location sufficient to establish contact with a minor, and excluding Internet Protocol (IP) address and product identification numbers for the operation of a service.

(2)Shall be deemed to be in compliance with paragraph (1) if the operator takes reasonable actions in good faith designed to avoid marketing or advertising under circumstances prohibited under paragraph (1).

(c)An operator of an internet website, online service, online application, or mobile application directed to minors or who has actual knowledge that a minor is using its internet website, online service, online application, or mobile application, shall not knowingly use, disclose, compile, or allow a third party to use, disclose, or compile, the personal information of a minor with actual knowledge that the use, disclosure, or compilation is for the purpose of marketing or advertising products or services to that minor for a product described in subdivision (i).

(d)“Minor” means a natural person under 18 years of age who resides in this state.

(e)“Internet website, online service, online application, or mobile application directed to minors” mean an internet website, online service, online application, or mobile application, or a portion thereof, that is created for the purpose of reaching an audience that is predominately comprised of minors, and is not intended for a more general audience comprised of adults. Provided, however, that an internet website, online service, online application, or mobile application, or a portion thereof, shall not be deemed to be directed at minors solely because it refers or links to an internet website, online service, online application, or mobile application directed to minors by using information location tools, including a directory, index, reference, pointer, or hypertext link.

(f)“Operator” means any person or entity that owns an internet website, online service, online application, or mobile application. It does not include any third party that operates, hosts, or manages, but does not own, an internet website, online service, online application, or mobile application on the owner’s behalf or processes information on the owner’s behalf.

(g)This section shall not be construed to require an operator of an internet website, online service, online application, or mobile application to collect or retain age information about users.

(h)(1)With respect to marketing or advertising provided by an advertising service, the operator of an internet website, online service, online application, or mobile application directed to minors shall be deemed to be in compliance with subdivision (a) if the operator notifies the advertising service, in the manner required by the advertising service, that the site, service, or application is directed to minors.

(2)If an advertising service is notified, in the manner required by the advertising service, that an internet website, online service, online application, or mobile application is directed to minors pursuant to paragraph (1), the advertising service shall not market or advertise a product or service on the operator’s internet website, online service, online application, or mobile application that is described in subdivision (i).

(i)The marketing and advertising restrictions described in subdivisions (a) and (b) shall apply to the following products and services as they are defined under state law:

(1)Alcoholic beverages, as referenced in Sections 23003 to 23007, inclusive, and Section 25658.

(2)Firearms or handguns, as referenced in Sections 16520, 16640, and 27505 of the Penal Code.

(3)Ammunition or reloaded ammunition, as referenced in Sections 16150 and 30300 of the Penal Code.

(4)Handgun safety certificates, as referenced in Sections 31625 and 31655 of the Penal Code.

(5)Aerosol container of paint that is capable of defacing property, as referenced in Section 594.1 of the Penal Code.

(6)Etching cream that is capable of defacing property, as referenced in Section 594.1 of the Penal Code.

(7)Any tobacco, cigarette, or cigarette papers, or blunt wraps, or any other preparation of tobacco, or any other instrument or paraphernalia that is designed for the smoking or ingestion of tobacco, products prepared from tobacco, or any controlled substance, as referenced in Division 8.5 (commencing with Section 22950) and Sections 308, 308.1, 308.2, and 308.3 of the Penal Code.

(8)Notwithstanding subdivision (b) of Section 26151, any cannabis, cannabis product, cannabis business, or any instrument or paraphernalia that is designed for the smoking or ingestion of cannabis or cannabis products.

(9)BB device, as referenced in Sections 16250 and 19910 of the Penal Code.

(10)Dangerous fireworks, as referenced in Sections 12505 and 12689 of the Health and Safety Code.

(11)Tanning in an ultraviolet tanning device, as referenced in Sections 22702 and 22706.

(12)Dietary supplement products containing ephedrine group alkaloids, as referenced in Section 110423.2 of the Health and Safety Code.

(13)Tickets or shares in a lottery game, as referenced in Sections 8880.12 and 8880.52 of the Government Code.

(14)Salvia divinorum or Salvinorin A, or any substance or material containing Salvia divinorum or Salvinorin A, as referenced in Section 379 of the Penal Code.

(15)Body branding, as referenced in Sections 119301 and 119302 of the Health and Safety Code.

(16)Permanent tattoo, as referenced in Sections 119301 and 119302 of the Health and Safety Code and Section 653 of the Penal Code.

(17)Drug paraphernalia, as referenced in Section 11364.5 of the Health and Safety Code.

(18)Electronic cigarette, as referenced in Section 119406 of the Health and Safety Code.

(19)Obscene matter, as referenced in Section 311 of the Penal Code.

(20)A less lethal weapon, as referenced in Sections 16780 and 19405 of the Penal Code.

(j)The marketing and advertising restrictions described in subdivisions (a), (b), and (c) shall not apply to the incidental placement of products or services embedded in content if the content is not distributed by or at the direction of the operator primarily for the purposes of marketing and advertising of the products or services described in subdivision (i).

(k)“Marketing or advertising” means, in exchange for monetary compensation, to make a communication to one or more individuals, or to arrange for the dissemination to the public of a communication, about a product or service the primary purpose of which is to encourage recipients of the communication to purchase or use the product or service.