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AB-2408 Social media platform: child users: addiction.(2021-2022)

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Date Published: 06/30/2022 09:00 PM
AB2408:v95#DOCUMENT

Amended  IN  Senate  June 30, 2022
Amended  IN  Senate  June 20, 2022
Amended  IN  Assembly  May 04, 2022
Amended  IN  Assembly  March 24, 2022

CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION

Assembly Bill
No. 2408

Introduced by Assembly Members Cunningham and Wicks

February 17, 2022

An act to amend add Section 1714 of 17052 to the Civil Business and Professions Code, relating to social media platforms.


LEGISLATIVE COUNSEL'S DIGEST


AB 2408, as amended, Cunningham. Social media platform: child users: addiction.
Existing law, the California Consumer Privacy Act of 2018, prohibits a business from selling the personal information of a consumer if the business has actual knowledge that the consumer is less than 16 years of age, unless the consumer, in the case of a consumer at least 13 years of age and less than 16 years of age, or the consumer’s parent or guardian, in the case of a consumer who is less than 13 years of age, has affirmatively authorized the sale of the consumer’s personal information.

Existing law provides that everyone is responsible not only for the result of their willful acts, but also for an injury occasioned to another by their want of ordinary care or skill in the management of their property or person.

Existing law, the Unfair Practices Act, makes certain business practices unlawful and regulates various businesses to, among other things, preserve and regulate competition, prohibit unfair trade practices, and regulate advertising.
This bill, the Social Media Platform Duty to Children Act, would specify that prohibit a social media platform, as defined, is also responsible for an injury occasioned to another by their want of ordinary care or skill in the management of their property or person, and would specify, for a social medial platform, that “ordinary care or skill” includes the platform’s use of any design, feature, or affordance that from using a design, feature, or affordance that the platform knew, or by the exercise of reasonable care should have known, causes a child user, as defined, to become addicted to the platform. The act would authorize a public prosecutor the Attorney General or a district attorney, county counsel, or city attorney to bring an action to recover or obtain certain relief, including a civil penalty of up to $25,000 per violation, and a mimumum amount of damages to be awarded per member of the class in a class action. The bill would also specify a mimumum amount of damages to be awarded per member of the class in any class action that is not brought by a public prosecutor. $250,000 for a knowing and willful violation, and an award of litigation costs and attorneys’ fees. The bill would provide that a social media platform is not subject to a civil penalty if it demonstrates that it met certain requirements, and would exempt a social media platform that is controlled by a business entity that generated less than $100,000,000 in gross revenue during the preceding calendar year or whose primary function is to allow users to play video games.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

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


SECTION 1.

 This act shall be known as the Social Media Platform Duty to Children Act.

SEC. 2.

 The Legislature finds and declares all of the following:
(a) California should take reasonable, proportional, and effective steps to ensure that its children are not harmed by addictions of any kind.
(b) A broad diversity of psychologists and psychiatrists in the field of addiction, as well as scientists, doctors, and other researchers, acknowledge the existence of social media addiction.
(1) Research using the Bergen Social Media Addiction Scale, a widely used measure of social media platform addiction, has found that social media platform addiction has a prevalence across the general population of about 5 percent.
(2) In people who become addicted, the brain’s reward system is more active when using social media than it is in the brains of people who are not addicted. The result, according to health experts and researchers, is compulsive and excessive social media use.
(c) There is growing evidence that social media platform addiction is a particular problem, particularly among adolescent children.
(1) The largest social media platform company in the world’s own secret internal research validates both the existence of social media addiction in children and that social media addiction hurts children. As an example, in September 2021, The Wall Street Journal published a series of articles referred to as “The Facebook Files.” Those articles, citing a trove of internal documents obtained from Frances Haugen, a whistleblower, demonstrated the extent to which Facebook knew that its platforms cause significant harm to users, especially children.
(2) More specifically, as revealed by Haugen’s sworn testimony before Congress and the accompanying secret research she revealed to The Wall Street Journal, “Facebook has studied a pattern that they call problematic use, what we might more commonly call addiction. It has a very high bar for what it believes [problematic use] is. It [means] you self-identify that you don’t have control over your usage and that it is materially harming your health, your schoolwork or your physical health.” … “Facebook’s internal research is aware that there are a variety of problems facing children on Instagram, they know that severe harm is happening to children.”
(3) During whistleblower Haugen’s sworn testimony to Congress, she revealed that, when it comes to meeting the platform’s addiction-like definition of “problematic use”: “Five to six percent of 14 year olds have the self-awareness to admit both those questions” that qualify a child as having problematic use.
(4) Five to six percent of Instagram’s child users is millions of children, certainly many thousands of which reside in California.
(d) Social media platform addiction is more acute in girls than boys.
(1) Girls experience a higher prevalence of social media addiction than boys.
(2) Girls who admit to excessive social media platform use are two to three times more likely to report being depressed than girls who use social media platforms lightly.
(3) A March 2020 presentation posted by Facebook researchers to Facebook’s internal message board reported that “66% of teen girls on IG experience negative social comparison (compared to 40% of teen boys)” and that “[a]spects of Instagram exacerbate each other to create a perfect storm.”
(e) The business models of some social media platform companies financially motivate them to deploy design features that increase the likelihood of addiction among all users, including children.
(1) Instead of charging to sign up, social media platforms earn “substantially all” of their revenue through advertising.
(2) The more time users engage with the platform, the more ads users see, and the more valuable the advertising becomes.
(3) In this regard, addicted consumers are particularly profitable because their consumption behavior goes beyond normal engagement levels.
(4) For these profit-driven reasons, social media platform companies intentionally invent, design, and deploy features that are intended to make it hard for users to stop using the platform, including deploying techniques used in gambling and techniques that mask or avoid cues that might prompt a user to stop using.
(f) Companies that market high-volume addictive products, including tobacco, have a special incentive to addict young, potentially lifelong, consumers.
(g) Adolescent children are at far greater risk than adults to becoming addicted to social media platforms.
(1) Adolescent children exhibit higher levels of stress and an increased proclivity toward taking risks.
(2) During adolescence, children’s reward systems develop much faster, while their self-control systems, which are not fully developed until 21 years of age, lag behind. For this reason, rates of behavioral addictions are elevated in adolescence as compared to adulthood.
(3) Social media platform companies can use the data they collect on children to determine which children are most likely to be vulnerable to a given ad, thereby exacerbating the risks of addiction.
(4) As compared to adults, children are more susceptible to the pressures and influence of advertisements, less likely to recognize paid-for content, and less likely to understand how data is used for these purposes.
(h) Because their brains are still developing, children are at far greater risk of being harmed by social media platform addiction than adults. Addiction adversely influences the development of judgment, attention, and memory in the brain.
(1) Higher daily rates of checking social media platforms have been linked to a reduction in the volume of brain tissue that controls memory, emotions, speech, decisionmaking, and self-control.
(2) For this reason, reduction in this kind of brain tissue is in turn correlated with higher impulsivity, something with which children and adolescents are already susceptible by dint of their youth.
(3) Several studies have found links between spending time on social media platforms and rates of suicide and depression among teens.
(4) Numerous studies show that reducing social media platform use results in mental health benefits.
(5) Social media platform addiction can create a vicious cycle for shy and lonely youth. Discomfort with real-life interactions leads to internet interactions, isolation from real-world interaction causes loneliness, loneliness combined with social phobia motivate additional engagement online.
(i) When social media platform companies create, design, implement, or maintain features for users, including child users, on their social media platforms that the company knows or should know are addictive to children, they should be held liable for the harms that result.
(j) Other addictions, including gambling addictions, have had a demonstrable negative effect on state economies.
(k) California has a compelling interest in protecting the mental health of its children from social media platform addiction that is foreseeable for, at a minimum, all of the following reasons:
(1) To prevent needless suffering to California children and their families.
(2) To ensure the capacity of all its children to fulfill their potential and to reach normal goals for social and educational achievement to the benefit of all Californians.
(3) To prevent the costs of treating mental health harms to children from being incurred by and shifted to California families, businesses, insurers, schools, and mental health professionals.
SEC. 3.Section 1714 of the Civil Code is amended to read:
1714.

(a)Everyone is responsible, not only for the result of their willful acts, but also for an injury occasioned to another by their want of ordinary care or skill in the management of their property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon themself. The design, distribution, or marketing of firearms and ammunition is not exempt from the duty to use ordinary care and skill that is required by this section. The extent of liability in these cases is defined by the Title on Compensatory Relief.

(b)It is the intent of the Legislature to abrogate the holdings in cases such as Vesely v. Sager (1971) 5 Cal.3d 153, Bernhard v. Harrah’s Club (1976) 16 Cal.3d 313, and Coulter v. Superior Court (1978) 21 Cal.3d 144 and to reinstate the prior judicial interpretation of this section as it relates to proximate cause for injuries incurred as a result of furnishing alcoholic beverages to an intoxicated person, namely that the furnishing of alcoholic beverages is not the proximate cause of injuries resulting from intoxication, but rather the consumption of alcoholic beverages is the proximate cause of injuries inflicted upon another by an intoxicated person.

(c)Except as provided in subdivision (d), no social host who furnishes alcoholic beverages to any person may be held legally accountable for damages suffered by that person, or for injury to the person or property of, or death of, any third person, resulting from the consumption of those beverages.

(d)(1)Nothing in subdivision (c) shall preclude a claim against a parent, guardian, or another adult who knowingly furnishes alcoholic beverages at their residence to a person whom the parent, guardian, or other adult knows, or should have known, to be under 21 years of age, in which case, notwithstanding subdivision (b), the furnishing of the alcoholic beverage may be found to be the proximate cause of resulting injuries or death.

(2)A claim under this subdivision may be brought by, or on behalf of, the person under 21 years of age or by a person who was harmed by the person under 21 years of age.

(e)(1)“Everyone,” as described in subdivision (a), includes a social media platform.

(2)The “want of ordinary care or skill,” as described in subdivision (a), includes a social media platform’s use of a design, feature, or affordance that causes a child user to become addicted to the platform.

(3)A child user, or parent or guardian on behalf of a child user, in any suit filed under this section who alleges, in whole or in part, that a social media platform through want of ordinary care in the use of a design, feature, or affordance caused a child user to become addicted to a platform, shall not prevail in such an action unless the trier of fact finds, based on the preponderance of the evidence, all of the following:

(A)The design, feature, or affordance was a substantial factor in causing the child user’s addiction and harm.

(B)It was reasonably foreseeable that the use of that design, feature, or affordance would addict and harm child users.

(C)The child user in such a suit became addicted and was therefore harmed.

(4)In any class action brought with regard to this subdivision that is not brought by a public prosecutor, the amount of damages awarded shall not be less than one thousand dollars ($1,000) per member of the class.

(5)A public prosecutor may bring an action under this subdivision, to obtain, in addition to any other remedy available under law, any of the following relief:

(A)In a class action, the amount of damages awarded pursuant to this paragraph shall not be less than one thousand dollars ($1,000) per member of the class.

(B)A civil penalty of up to twenty-five thousand dollars ($25,000) per violation.

(C)An award of litigation costs and reasonable attorney’s fees.

(D)(i)An additional civil penalty not to exceed two hundred fifty thousand dollars ($250,000) per violation for a knowing and willful violation.

(ii)A civil penalty pursuant to this subparagraph shall not be treated as an offset against an award of damages caused by the same knowing or willful violation in an action pursuant to this subdivision.

(6)(A)A social media platform that, before January 1, 2023, developed, designed, implemented, or maintained features that were known, or should have been known, by the platform to be addictive to child users shall be liable for all damages under this subdivision to child users that are, in whole or in part, caused by the platform’s features, including, but not limited to, suicide, mental illness, eating disorders, emotional distress, and costs for medical care, including care provided by licensed mental health professionals.

(B)A social media platform shall not be held liable for a violation under this subdivision if, by _____, the platform ceases development, design, implementation, or maintenance of features that were known, or should have been known, by the platform to be addictive to child users.

(7)An operator of a social media platform shall not be subject to a civil penalty under this subdivision if the operator did both of the following:

(A)Instituted and maintained a program of at least quarterly audits of its practices, designs, features, and affordances to detect practices or features that have the potential to cause or contribute to the addiction of child users.

(B)Corrected, within _____ days of the completion of an audit described in subparagraph (A), any practice, design, feature, or affordance discovered by the audit to present more than a de minimis risk of violating this subdivision.

(8)The provisions of this subdivision are cumulative to any other duties or obligations imposed under other law.

(9)This section shall not be construed to impose liability for a social media platform for any of the following:

(A)Content that is generated by a user of the service, or uploaded to or shared on the service by a user of the service, that may be encountered by another user, or other users, of the service.

(B)Passively displaying content that is created entirely by third parties.

(C)Information or content for which the social media platform was not, in whole or in part, responsible for creating or developing.

(D)Any conduct by a social media platform involving child users that would otherwise be protected by 47 U.S.C. 230, or by application of case law interpreting the First Amendment of the United States Constitution or Section 2 of Article 1 of the California Constitution.

(10)This subdivision shall not be construed to negate or limit a cause of action that may have existed or exists against an operator of a social media platform under the law as it existed before the effective date of this subdivision.

(11)The provisions of this subdivision are severable. If any provision of this subdivision 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.

(12)A waiver of this subdivision is unenforceable as void against public policy.

(13)For purposes of this subdivision:

(A)“Addict” means to knowingly or negligently cause addiction through any act or omission or any combination of acts or omissions.

(B)“Addiction” means use of one or more social media platforms that does both of the following:

(i)Indicates preoccupation or obsession with, or withdrawal or difficulty to cease or reduce use of, a social media platform despite the user’s desire to cease or reduce that use.

(ii)Causes physical, mental, emotional, developmental, or material harms to the user.

(C)“Child user” means a person who uses a social media platform and is younger than 18 years of age.

(D)(i)“Social media platform” means an internet-based service or application that has users in the state, and that meets all of the following criteria:

(I)The primary purpose of the service or application is to connect users and allow users to interact with each other within the service or application.

(II)The service or application is controlled by a business entity that generated at least one hundred million dollars ($100,000,000) in gross revenue during the preceding calendar year.

(III)The service or application allows users to do all of the following:

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

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

(ic)View and navigate a list of connections made by other individuals within the system.

(id)Create or post content viewable by other users.

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

(I)An email service, if emails are the only user-generated content enabled by the service.

(II)An SMS and MMS service, if SMS or MMS messages are the only user-generated content enabled by the service.

(III)A service offering only one-to-one live aural communications.

(IV)An internal business service that is an internal resource or tool for a business or nonprofit organization in which the services is not available to children in the general public.

(V)A service, including a comment section on a digital news internet website or a consumer review of a product and service on an online commerce internet website, with functionalities that allow users to communicate only in any of the following ways:

(ia)Posting comments or reviews relating to content produced and published by the provider of the service or by a person acting on behalf of the provider of the service.

(ib)Sharing comments or reviews described in sub-subclause (ia) on a different internet service.

(ic)Expressing a view on comments or reviews described in sub-subclause (ia), or on content mentioned in clause (i), by means of any of the following:

(Ia)Applying a “like” or “dislike” button or other button of that nature.

(Ib)Applying an emoji or symbol of any kind.

(Ic)Engaging in yes or no voting.

(Id)Rating or scoring the content, or the comments or reviews, in any way.

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

(VII)A service that operates for the sole purpose of cloud storage or shared document or file collaboration.

(VIII)A service that operates for the sole purpose of providing general or tailored internet search services.

SEC. 3.

 Section 17052 is added to the Business and Professions Code, to read:

17052.
 (a) A social media platform shall not use a design, feature, or affordance that the platform knew, or which by the exercise of reasonable care should have known, causes child users to become addicted to the platform.
(b) Actions for relief pursuant to this section may be prosecuted exclusively by the Attorney General or by a district attorney, county counsel, or city attorney, as described in Section 17204.
(c) In addition to any other relief available pursuant to Chapter 5 (commencing with Section 17200), including relief or penalties available under Sections 17204 and 17206, any person who has violated subdivision (a) may be liable for an additional civil penalty not to exceed two hundred fifty thousand dollars ($250,000) per violation for a knowing and willful violation, and an award of litigation costs and attorneys’ fees.
(d) A social media platform shall not be subject to a civil penalty under this section or Section 17206 for violating subdivision (a) if the platform, as an affirmative defense, demonstrates it did both of the following:
(1) Instituted and maintained a program of at least quarterly audits of its practices, designs, features, and affordances to detect practices or features that have the potential to cause or contribute to the addiction of child users.
(2) Corrected, within 30 days of the completion of an audit described in paragraph (1), any practice, design, feature, or affordance discovered by the audit to present more than a de minimis risk of violating this subdivision.
(e) The provisions of this section are cumulative to any other duties or obligations imposed under other law.
(f) This section shall not be construed to impose liability for a social media platform for any of the following:
(1) Content that is generated by a user of the service, or uploaded to or shared on the service by a user of the service, that may be encountered by another user, or other users, of the service.
(2) Passively displaying content that is created entirely by third parties.
(3) Information or content for which the social media platform was not, in whole or in part, responsible for creating or developing.
(4) Any conduct by a social media platform involving child users that would otherwise be protected by Section 230 of Title 47 of the United States Code, or by application of case law interpreting the First Amendment of the United States Constitution or Section 2 of Article 1 of the California Constitution.
(g) This section shall not be construed to negate or limit a cause of action that may have existed or exists against a social media platform under the law as it existed before the effective date of this section and nothing in the legislative history of Assembly Bill 2408 (Cunningham and Wicks) of the Legislative Session 2022 shall be used or be admissible as evidence of legislative intent for any claim or cause of action not brought under this section.
(h) The provisions of this section are severable. If any provision of this subdivision 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.
(i) A waiver of this section is unenforceable as void against public policy.
(j) For purposes of this section, the following shall apply:
(1) “Addicted” means to knowingly or negligently cause addiction through any act or omission or any combination of acts or omissions.
(2) “Addiction” means use of one or more social media platforms that does both of the following:
(A) Indicates preoccupation or obsession with, or withdrawal or difficulty to cease or reduce use of, a social media platform despite the user’s desire to cease or reduce that use.
(B) Causes physical, mental, emotional, developmental, or material harms to the user.
(3) “Child user” means a person who uses a social media platform and is younger than 18 years of age.
(4) (A) “Content” means statements or comments made by users and media that are created, posted, shared, or otherwise interacted with by users on an internet-based service or application.
(B) “Content” does not include media put online exclusively for the purpose of cloud storage, transmitting documents, or file collaboration.
(5) “Social media platform” means a public or semipublic internet-based service or application that has users in California and that meets all of the following criteria:
(A) A substantial function of the service or application is to connect users in order to allow users to interact socially with each other within the service or application.
(B) A service or application that provides email or direct messaging services shall not be considered to meet this criterion on the basis of that function alone.
(C) The service or application allows users to do all of the following:
(i) Construct a public or semipublic profile for purposes of signing into and using the service.
(ii) Populate a list of other users with whom an individual shares a social connection within the system.
(iii) Create or post content viewable by other users, including, but not limited to, on message boards, in chat rooms, or through a landing page or main feed that presents the user with content generated by other users.
(6) “Public or semipublic internet-based service or application” excludes a service or application used to facilitate communication within a business or enterprise among employees or affiliates of the business or enterprise, provided that access to the service or application is restricted to employees or affiliates of the business or enterprise using the service or application.
(k) This section does not apply to:
(1) A social media platform that is controlled by a business entity that generated less than one hundred million dollars ($100,000,000) in gross revenue during the preceding calendar year.
(2) A social media platform whose primary function is to allow users to play video games.