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AB-1379 Online platforms: disclosures.(2021-2022)

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Date Published: 04/12/2021 09:00 PM
AB1379:v97#DOCUMENT

Amended  IN  Assembly  April 12, 2021
Amended  IN  Assembly  March 22, 2021

CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION

Assembly Bill
No. 1379

Introduced by Assembly Member Eduardo Garcia

February 19, 2021

An act to add Part 5 (commencing with Section 18010) to Division 7 of the Business and Professions Code, to amend, add, and repeal Section 35 of the Code of Civil Procedure, to add and repeal Chapter 7 (commencing with Section 20510) of Division 20 of the Elections Code, and to amend Section 84504.6 of the Government Code, relating to online platforms.


LEGISLATIVE COUNSEL'S DIGEST


AB 1379, as amended, Eduardo Garcia. Online platforms: false campaign speech: social media platforms: amplfying content. disclosures.

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 from amplifying, in a manner that violates its terms of service or written public promises, content that is in violation of the platform’s terms of service. The bill would require a social media platform to provide its users with one or more tools to allow a user to report a posting that contains content the user believes has been amplified in violation of that provision and would require a social media platform to provide, at the request of the Attorney General, the number of those reports made by users and any actions taken by the social media platform in response to those reports. The bill would subject a person who violates these provisions to a civil penalty of $1 for each discrete violation, as specified, and would authorize certain public attorneys, including the Attorney General, to bring an action to enforce that penalty, as specified. The bill would also authorize a person who has seen or heard content amplified in violation of the bill to bring a civil action to enforce the penalty only with respect to the content amplification prohibition described above.

Existing law, until January 1, 2023, prohibits a person, committee, or other entity, within 60 days of an election at which a candidate for elective office will appear on the ballot, from distributing with actual malice materially deceptive audio or visual media of the candidate with the intent to injure the candidate’s reputation or to deceive a voter into voting for or against the candidate, unless the media includes a disclosure stating that the media has been manipulated.

This bill, until January 1, 2025, would prohibit a committee, within 60 days of an election at which a candidate or measure will appear on the ballot, from distributing, with actual malice, a false material statement of fact relating to the candidate or measure with the intent to deceive a voter into voting for or against the candidate or measure. The bill would prohibit an online platform from knowingly promoting, recommending, or encouraging consumption of such statements. The bill would authorize a person to seek injunctive or other equitable relief, and general or special damages, and would authorize the court to award a prevailing party reasonable attorney’s fees and costs. This bill would require a court to place such proceedings on the calendar in the order of their date of filing and give them precedence.

This bill would require online platforms to provide users with one or more tools to allow the user to report a posting that contains a statement the user believes is in violation of the requirements of the bill. At the request of the Attorney General, the online platform would be required to provide to the Attorney General a list of these reports and any actions taken by the online platform in response to those reports.

The Political Reform Act of 1974 provides for the comprehensive regulation of campaign financing and activities by the Fair Political Practices Commission. Under the act, political advertisements on online platforms are required to contain certain disclosure statements.
This bill would require an online platform to maintain and make available for online public inspection a description of the audience requested by the committee and the types of personal information, as defined, used by the online platform to target the advertisement, including use by the online platform of characteristics such as age, gender, race, or other protected classifications under law. The online platform’s chief executive officer, chief financial officer, chief operating officer, chief privacy officer, or the equivalent position of any of these officers, if applicable, would be required to personally certify, under penalty of perjury, that to their knowledge the online platform has correctly disclosed all activity under this law. By expanding the crime of perjury, the bill would impose a state-mandated local program. In addition, because a violation of the act is subject to criminal penalties, the bill would impose a state-mandated local program by expanding the act’s criminal penalties.
This bill would also require an online platform that has 10,000,000 or more unique monthly United States visitors or users for a majority of months during the preceding 12 months that targets political advertising, as described above, to make available an application programming interface or other technical capability to enable qualified third parties to conduct independent analysis of bias and unlawful discriminatory impact of that targeted advertising.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
The Political Reform Act of 1974, an initiative measure, provides that the Legislature may amend the act to further the act’s purposes upon a 2/3 vote of each house of the Legislature and compliance with specified procedural requirements.
This bill would declare that it furthers the purposes of the act.
Vote: 2/3   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

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


SECTION 1.Part 5 (commencing with Section 18010) is added to Division 7 of the Business and Professions Code, to read:
5.Amplifying Social Media Content in Violation of Publicized Terms of Service
18010.

(a)A social media platform shall not, in a manner that violates its terms of service or written public promises, amplify content that is in violation of its terms of service.

(b)(1)A social media platform shall provide its users one or more tools to allow a user to report a posting that contains content the user believes has been amplified in violation of subdivision (a).

(2)At the request of the Attorney General, a social media platform shall provide to the Attorney General the number of reports, described in paragraph (1), made by users and any actions taken by the social media platform in response to those reports.

(c)(1)A person is subject to a civil penalty of one dollar ($1) for each discrete violation of this section.

(2)The civil penalty prescribed by this subdivision may be assessed and recovered in a civil action brought in the name of the people of the State of California by the Attorney General or by any district attorney, county counsel, or city attorney in any court of competent jurisdiction.

(3)If an action is brought by the Attorney General, one-half of the penalty collected pursuant to this section shall be paid to the treasurer of the county in which the judgment was entered, and one-half to the State Treasurer. If brought by a district attorney or county counsel, the entire amount of the penalty collected shall be paid to the treasurer of the county in which the judgment was entered. If brought by a city attorney or city prosecutor, one-half of the penalty shall be paid to the treasurer of the county in which the judgment was entered and one-half to the city.

(4)The civil penalty prescribed by this subdivision may be assessed and recovered in a civil action brought by a person who has seen or heard the content amplified in violation of this section only with respect to violations of subdivision (a).

(d)As used in this section:

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

(2)“Social media platform” means an internet-based service through which users develop a persistent virtual network or community comprised of other users for the purpose of sharing information, ideas, news reports, and other content that allows individuals to do any 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 the individual’s connections and the connections made by other individuals within the system.

SEC. 2.Section 35 of the Code of Civil Procedure, as amended by Section 1 of Chapter 493 of the Statutes of 2019, is amended to read:
35.

(a)Proceedings in cases involving the registration or denial of registration of voters, the certification or denial of certification of candidates, the certification or denial of certification of ballot measures, election contests, and actions under Section 20010 or Section 20510 of the Elections Code shall be placed on the calendar in the order of their date of filing and shall be given precedence.

(b)This section shall remain in effect only until January 1, 2023, and as of that date is repealed.

SEC. 3.Section 35 is added to the Code of Civil Procedure, to read:
35.

(a)Proceedings in cases involving the registration or denial of registration of voters, the certification or denial of certification of candidates, the certification or denial of certification of ballot measures, election contests, and actions under Section 20510 of the Elections Code shall be placed on the calendar in the order of their date of filing and shall be given precedence.

(b)This section shall become operative January 1, 2023. This section shall remain in effect only until January 1, 2025, and as of that date is repealed.

SEC. 4.Section 35 of the Code of Civil Procedure, as added by Section 2 of Chapter 493 of the Statutes of 2019, is amended to read:
35.

(a)Proceedings in cases involving the registration or denial of registration of voters, the certification or denial of certification of candidates, the certification or denial of certification of ballot measures, and election contests shall be placed on the calendar in the order of their date of filing and shall be given precedence.

(b)This section shall become operative January 1, 2025.

SEC. 5.Chapter 7 (commencing with Section 20510) is added to Division 20 of the Elections Code, to read:
7.False Campaign Speech
20510.

(a)A committee, as defined in Section 82013 of the Government Code, shall not, within 60 days of an election at which a candidate or measure will appear on the ballot, distribute, with actual malice, a false material statement of fact relating to the candidate or measure with the intent to deceive a voter into voting for or against the candidate or measure.

(b)(1)An online platform, as defined in Section 84504.6 of the Government Code, shall not knowingly promote, recommend, or encourage consumption of a statement described in subdivision (a).

(2)An online platform shall provide each user with one or more tools to allow the user to report a posting that contains a statement the user believes is in violation of subdivision (a). At the request of the Attorney General, the online platform shall provide to the Attorney General a list of reports under this paragraph and any actions taken by the online platform in response to those reports.

(c)(1)Any person may seek injunctive or other equitable relief prohibiting the distribution of a statement described in subdivision (a) or prohibiting an online platform from promoting, recommending, or encouraging consumption of that statement. An action under this paragraph shall be entitled to precedence in accordance with Section 35 of the Code of Civil Procedure.

(2)Any person may bring an action for general or special damages against the committee that made the false statement or the online platform that promoted, recommended, or encouraged consumption of that false statement. The court may also award a prevailing party reasonable attorney’s fees and costs. This subdivision shall not be construed to limit or preclude a plaintiff from securing or recovering any other available remedy.

(3)In any civil action alleging a violation of this section, the plaintiff shall bear the burden of establishing the violation through clear and convincing evidence.

(d)The provisions of this section are severable. If any provision of this section or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.

(e)This chapter shall remain in effect only until January 1, 2025, and as of that date is repealed.

SEC. 6.SECTION 1.

 Section 84504.6 of the Government Code is amended to read:

84504.6.
 (a) For purposes of this article, the following terms have the following meanings:
(1) “Online platform” means a public-facing internet website, web application, or digital application, including a social network, ad network, or search engine, that sells advertisements directly to advertisers. A public-facing internet website, web application, or digital application is not an online platform for purposes of this article to the extent that it displays advertisements that are sold directly to advertisers through another online platform.
(2) (A) “Online platform disclosed advertisement” means either of the following:
(i) A paid electronic media advertisement on an online platform made via a form of electronic media that allows users to engage in discourse and post content, or any other type of social media, for which the committee pays the online platform, unless all advertisements on the platform are video advertisements that can comply with Section 84504.1. Individual posts, comments, or other similar communications are not considered online platform disclosed advertisements if they are posted without payment to the online platform.
(ii) A paid electronic media advertisement on an online platform that is not any of the following:
(I) A graphic, image, animated graphic, or animated image that the online platform hosting the advertisement allows to hyperlink to an internet website containing required disclosures, as described in subdivision (b) of Section 84504.3.
(II) Video, audio, or email.
(B) Electronic media advertisements that are not online platform disclosed advertisements as defined in subparagraph (A) shall follow disclosure requirements for electronic media advertisements under Section 84504.3.
(b) A committee that disseminates an online platform disclosed advertisement shall do all of the following:
(1) Upon requesting the dissemination, expressly notify the online platform through which the advertisement would be disseminated, using the online platform’s chosen notification method, that the advertisement is an advertisement as defined in Section 84501.
(2) (A) Provide the online platform with the disclosure name of the committee.
(B) For purposes of this section, “disclosure name” means the text required by Section 84503, followed by a colon, followed by, surrounded in quotation marks, the name of the committee as it appears on the most recent Statement of Organization filed pursuant to Section 84101 or the name that the filer is required to use on campaign statements pursuant to subdivision (o) of Section 84211. If no disclosure text is required by Section 84503, “disclosure name” means the name of the committee as it appears on the most recent Statement of Organization filed pursuant to Section 84101 or the name that the filer is required to use on campaign statements pursuant to subdivision (o) of Section 84211.
(C) If the disclosure name changes due to a change in the top contributors or the name of the committee, the committee shall provide the online platform with an updated disclosure name within five business days.
(3) Provide the online platform with the name of the candidate to which the advertisement refers and the office to which the candidate is seeking election, as applicable, or number or letter of the ballot measure and the jurisdiction to which the advertisement refers.
(4) Provide the online platform with the name and identification number of the committee that paid for the advertisement.
(c) An online platform that disseminates a committee’s online platform disclosed advertisement shall do one of the following:
(1) Display “Paid for by” or “Ad Paid for by” followed by the disclosure name provided by the committee, easily readable to the average viewer, located adjacent to any text stating that the advertisement is an advertisement or is promoted or sponsored. The online platform may display only one hundred or more characters of the disclosure name if it is followed by a “…” that is clearly clickable and that links to a page as described in paragraph (3).
(2) The online platform may instead display a hyperlink, icon, button, or tab with the text “Who funded this ad?,” “Paid for by,” or “Ad Paid for by” that is clearly clickable in the same or similar font and in at least the same font size as the online platform’s text, and easily readable to the average viewer, stating that the advertisement is an advertisement or is promoted or sponsored, that links to a page as described in paragraph (3).
(3) Hyperlinks, icons, buttons, or tabs used for the purposes described in paragraphs (1) and (2) shall be linked to the profile or landing page of the committee that paid for the advertisement; to another page to which the average viewer would normally navigate to view additional information about a committee containing the disclosure name in a manner that is easily seen and readable by the average viewer; or to an internet website containing the disclosure required by subdivision (d) of Section 84504.3.
(d) An online platform that disseminates committees’ online platform disclosed advertisements shall meet all of the following requirements:
(1) Maintain, and make available for online public inspection in a machine readable format, a record of any advertisement disseminated on the online platform by a committee that purchased five hundred dollars ($500) or more in advertisements on the online platform during the preceding 12 months. Each record shall contain all of the following:
(A) A digital copy of the advertisement.
(B) The approximate number of views generated from the advertisement and the date and time that the advertisement was first displayed and last displayed.
(C) Information regarding the range charged or the total amount spent on the advertisement.
(D) The name of the candidate to which the advertisement refers and the office to which the candidate is seeking election, as applicable, or number or letter of the ballot measure and the jurisdiction to which the advertisement refers.
(E) The name and identification number of the committee that paid for the advertisement, if the committee is assigned an identification number.
(F) (i) A description of the audience requested by the committee and the types of personal information, as defined in subdivision (o) of Section 1798.140 of the Civil Code, used by the online platform to target the advertisement, including use by the online platform of characteristics such as age, gender, race, or other protected classifications under law. The online platform’s chief executive officer, chief financial officer, chief operating officer, chief privacy officer, or the equivalent position of any of these officers, if applicable, shall personally certify, under penalty of perjury, that to their knowledge the online platform has correctly disclosed all activity pursuant to this clause.
(ii) An online platform that has 10,000,000 or more unique monthly United States visitors or users for a majority of months during the preceding 12 months that targets political advertising, as described in clause (i), shall make available an application programming interface or other technical capability to enable qualified third parties to conduct independent analysis of bias and unlawful discriminatory impact of that targeted advertising. The online platform may impose reasonable measures on a third party that seeks qualification to conduct independent analysis pursuant to this clause, including to ensure the third party does not engage in commercial activity and that the third party protect the data security of the online platform.
(2) The information required under this subdivision shall be made available as soon as practicable and shall be retained by the online platform for no less than four years.
(3) (A) Display a prominent button, icon, tab, or hyperlink with the text “View Ads” or similar text in one of the following locations: (i) near the top of a profile, landing page, or similar location of a committee that paid for an advertisement in a position that the average viewer will readily see it upon viewing that page; (ii) on a page that displays the committee’s profile information or biographical information; (iii) or on a page on which the average viewer would normally navigate to view additional information about a committee.
(B) The button, icon, tab, or hyperlink shall link to a page clearly showing all of the advertisement records required by paragraph (1).
(e) An online platform that creates a mechanism for a committee requesting dissemination of an online platform disclosed advertisement to expressly notify the online platform whether the advertisement is an advertisement as defined in Section 84501 and to provide all information necessary for the online platform to comply with the requirements of this section may rely in good faith on the information provided by the committee to the online platform to satisfy the online platform’s obligations under subdivisions (c) and (d).

SEC. 7.SEC. 2.

 No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.

SEC. 8.SEC. 3.

 The Legislature finds and declares that Section 6 of this bill furthers the purposes of the Political Reform Act of 1974 within the meaning of subdivision (a) of Section 81012 of the Government Code.