PCB COM 21-01 — An Act Relating to Technology Transparency (2021)
Summary
Proposed committee bill PCB COM 21-01 of 2021, a bill to be entitled an act relating to technology transparency. It would create sections 106.072, 287.137 and 501.2041 of the Florida Statutes, covering social media platforms and the deplatforming of candidates, an antitrust violator vendor list kept by the Department of Management Services, and actions the Department of Legal Affairs may bring against social media platforms. The bill authorizes investigation of suspected violations under the Deceptive and Unfair Trade Practices Act and amends section 501.212. Section 5 is a severability clause, and Section 6 states that the act takes effect July 1, 2021.
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“PCB COM 21-01 — An Act Relating to Technology Transparency (2021).”
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
PCB COM 21-01 2021
1 A bill to be entitled
2 An act relating to technology transparency; creating
3 s. 106.072, F.S.; providing definitions; prohibiting a
4 social media platform from knowingly deplatforming a
5 candidate; providing fines for violations; authorizing
6 social media platforms to provide free advertising for
7 candidates under specified conditions; providing
8 enforcement mechanism; creating s. 287.137, F.S.;
9 providing definitions; providing requirements for
10 public contracts and economic incentives related to
11 entities who have been convicted or held civilly
12 liable for antitrust violations; prohibiting a public
13 entity from entering into any type contract with a
14 person or affiliate on the antitrust violator vendor
15 list; providing applicability; requiring certain
16 contract documents to contain a specified statement;
17 requiring the Department of Management Services to
18 maintain a list of people or affiliates disqualified
19 from the public contracting and purchasing process;
20 specifying requirements for publishing such list;
21 providing procedures for placing a person or affiliate
22 on the list; providing procedural and legal rights for
23 a person or affiliate to challenge placement on the
24 list; providing a procedure for placing a person
25 temporarily on an antitrust violator vendor list;
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26 providing procedural and legal rights for a person to
27 challenge temporary placement on the list; authorizing
28 a person, under specified conditions, to retain rights
29 or obligations under existing contracts or binding
30 agreements; prohibiting a person who has been placed
31 on antitrust violator vendor list from receiving
32 certain economic incentives; providing exceptions;
33 providing enforcement methodology; creating s.
34 501.2041, F.S.; providing definitions; authorizing the
35 Department of Legal Affairs to bring specified actions
36 against social media platforms for failure to comply
37 with specified requirements; specifying requirements
38 that must be contained when notification is given by a
39 social platform for certain purposes; providing an
40 exception to notification requirements; authorizing
41 the department to investigate suspected violations
42 under the Deceptive and Unfair Trade Practices Act;
43 specifying circumstances under which a private cause
44 of action may be brought; specifying how damages are
45 to be calculated; providing construction for
46 violations of certain provisions of this act;
47 specifying powers of the Department of Legal Affairs
48 related to investigations related to acts of shadow
49 banning by social media platforms; granting the
50 department specified subpoena powers; providing
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51 enforcement authority; amending s. 501.212, F.S.;
52 conforming a provision to changes made by the act;
53 providing a severability clause; providing an
54 effective date.
55
56 Be It Enacted by the Legislature of the State of Florida:
57
58 Section 1. Section 106.072, Florida Statutes, is created
59 to read:
60 106.072 Social media deplatforming of political
61 candidates.—
62 (1) As used in this section, the term:
63 (a) "Candidate" has the same meaning as in s.
64 106.011(3)(e).
65 (b) "Deplatform" has the same meaning as in s. 501.2041.
66 (c) "Social media platform" has the same meaning as in s.
67 501.2041.
68 (2) A social media platform may not knowingly deplatform a
69 candidate. Upon a finding of a violation of this section by the
70 Elections Commission, in addition to the remedies provided in
71 ss. 106.265 and 106.27, the social media platform may be fined
72 $100,000 per day for statewide candidates and $10,000 per day
73 for other candidates.
74 (3) A social media platform that knowingly provides free
75 advertising for a candidate must inform the candidate of such
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76 in-kind contribution. Posts, content, material, and comments by
77 candidates that are shown on the platform in the same or similar
78 way as other user's posts, content, material, and comments is
79 not considered free advertising.
80 (4) This section may only be enforced to the extent not
81 inconsistent with federal law and 47 U.S.C. s. 230(e)(3), and
82 notwithstanding any other provision of state law.
83 Section 2. Section 287.137, Florida Statutes, is created
84 to read:
85 287.137 Antitrust violations; denial or revocation of the
86 right to transact business with public entities; denial of
87 economic benefits.—
88 (1) As used in this section, the term:
89 (a) "Affiliate" means:
90 1. A predecessor or successor of a person convicted of or
91 held civilly liable for an antitrust violation; or
92 2. An entity under the control of any natural person who
93 is active in the management of the entity and who has been
94 convicted of or held civilly liable for an antitrust violation.
95 The term includes those officers, directors, executives,
96 partners, shareholders, employees, members, and agents who are
97 active in the management of an affiliate. The ownership by one
98 person of shares constituting a controlling interest in another
99 person, or a pooling of equipment or income among persons when
100 not for fair market value under an arm's length agreement, is a
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101 prima facie case that one person controls another person. The
102 term also includes a person who knowingly enters into a joint
103 venture with a person who has violated an antitrust law during
104 the preceding 36 months.
105 (b) "Antitrust violation" means any state or federal
106 antitrust law as determined in a civil or criminal proceeding
107 brought by the Attorney General, a state attorney, a similar
108 body or agency of another state, the Federal Trade Commission,
109 or the United States Department of Justice.
110 (c) "Antitrust violator vendor list" means the list
111 required to be kept by the department pursuant to paragraph
112 (3)(b).
113 (d) "Conviction or being held civilly liable" or
114 "convicted or held civilly liable" means a criminal finding of
115 guilt or conviction, with or without an adjudication of guilt,
116 being held civilly liable, or having a judgment levied for an
117 antitrust violation, in any federal or state trial court of
118 record relating to charges brought by indictment, information,
119 or complaint on or after July 1, 2021, as a result of a jury
120 verdict, nonjury trial, or entry of a plea of guilty or nolo
121 contendere or other order finding of liability.
122 (e) "Economic incentives" means state grants, cash grants,
123 tax exemptions, tax refunds, tax credits, state funds, and other
124 state incentives under chapter 288 or administered by Enterprise
125 Florida, Inc.
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126 (f) "Person" means a natural person or an entity organized
127 under the laws of any state or of the United States who operates
128 as a social media platform, as defined in s. 501.2041, with the
129 legal power to enter into a binding contract and which bids or
130 applies to bid on contracts let by a public entity, or which
131 otherwise transacts or applies to transact business with a
132 public entity. The term "person" includes those officers,
133 directors, executives, partners, shareholders, employees,
134 members, and agents who are active in management of an entity.
135 (g) "Public entity" means the state and any of its
136 departments or agencies.
137 (2)(a) A person or affiliate who has been placed on the
138 antitrust violator vendor list following a conviction or being
139 held civilly liable for an antitrust violation may not submit a
140 bid, proposal, or reply for any new contract to provide any
141 goods or services to a public entity; may not submit a bid,
142 proposal, or reply for a new contract with a public entity for
143 the construction or repair of a public building or public work;
144 may not submit a bid, proposal, or reply on new leases of real
145 property to a public entity; may not be awarded or perform work
146 as a contractor, supplier, subcontractor, or consultant under a
147 new contract with a public entity; and may not transact new
148 business with a public entity.
149 (b) A public entity may not accept a bid, proposal, or
150 reply from, award a new contract to, or transact new business
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151 with any person or affiliate on the antitrust violator vendor
152 list unless that person or affiliate has been removed from the
153 list pursuant to paragraph (3)(e).
154 (c) This subsection does not apply to contracts that were
155 awarded or business transactions that began before a person or
156 an affiliate was placed on the antitrust violator vendor list,
157 and in no event before July 1, 2021.
158 (3)(a) Beginning July 1, 2021, all invitations to bid,
159 requests for proposals, and invitations to negotiate, as defined
160 in s. 287.012, and any contract document described in s. 287.058
161 shall contain a statement informing persons of the provisions of
162 paragraph (2)(a).
163 (b) The department shall maintain an antitrust violator
164 vendor list of the names and addresses of the people or
165 affiliates who have been disqualified from the public
166 contracting and purchasing process under this section. The
167 department shall publish the initial antitrust violator vendor
168 list on January 1, 2022, and shall publish an updated version of
169 the list quarterly thereafter. The revised quarterly list shall
170 also be electronically posted. Notwithstanding this paragraph, a
171 person or affiliate disqualified from the public contracting and
172 purchasing process pursuant to this section is disqualified as
173 of the date the final order is entered.
174 (c)1. Upon receiving reasonable information from any
175 source that a person was convicted or held civilly liable, the
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176 department shall investigate the information and determine
177 whether good cause exists to place that person or an affiliate
178 of that person on the antitrust violator vendor list. If good
179 cause exists, the department shall notify the person or
180 affiliate in writing of its intent to place the name of that
181 person or affiliate on the antitrust violator vendor list, and
182 of the person's or affiliate's right to a hearing, the procedure
183 that must be followed, and the applicable time requirements. If
184 the person or affiliate does not request a hearing, the
185 department shall enter a final order placing the name of the
186 person or affiliate on the antitrust violator vendor list. A
187 person or affiliate may not be placed on the antitrust violator
188 vendor list without receiving an individual notice of intent
189 from the department.
190 2. Within 21 days after receipt of the notice of intent,
191 the person or affiliate may file a petition for a formal hearing
192 under ss. 120.569 and 120.57(1) to determine whether it is in
193 the public interest for the person or affiliate to be placed on
194 the antitrust violator vendor list. A person or affiliate may
195 not file a petition for an informal hearing under s. 120.57(2).
196 The procedures of chapter 120 shall apply to any formal hearing
197 under this paragraph except within 30 days after the formal
198 hearing or receipt of the hearing transcript, whichever is
199 later, the administrative law judge shall enter a final order,
200 which shall consist of findings of fact, conclusions of law,
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201 interpretation of agency rules, and any other information
202 required by law or rule to be contained in the final order. The
203 final order shall direct the department to place or not place
204 the person or affiliate on the antitrust violator vendor list.
205 The final order of the administrative law judge is final agency
206 action for purposes of s. 120.68.
207 3. In determining whether it is in the public interest to
208 place a person or affiliate on the antitrust violator vendor
209 list under this paragraph, the administrative law judge shall
210 consider the following factors:
211 a. Whether the person or affiliate committed an antitrust
212 violation.
213 b. The nature and details of the antitrust violation.
214 c. The degree of culpability of the person or affiliate
215 proposed to be placed on the antitrust violator vendor list.
216 d. Reinstatement or clemency in any jurisdiction in
217 relation to the antitrust violation at issue in the proceeding.
218 e. The needs of public entities for additional competition
219 in the procurement of goods and services in their respective
220 markets.
221 4. In any proceeding under this paragraph, the department
222 must prove that it is in the public interest for the person or
223 affiliate to whom it has given notice under this paragraph to be
224 placed on the antitrust violator vendor list. Proof that a
225 person was convicted or was held civilly liable, or that an
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226 entity is an affiliate of a person constitutes a prima facie
227 case that it is in the public interest for the person or
228 affiliate to whom the department has given notice to be put on
229 the antitrust violator vendor list. Status as an affiliate must
230 be proven by clear and convincing evidence. If the
231 administrative law judge determines that the person was not
232 convicted or that the person was not civilly liable or is not an
233 affiliate of such person, that person or affiliate shall not be
234 placed on the antitrust violator vendor list.
235 5. Any person or affiliate who has been notified by the
236 department of its intent to place his or her name on the
237 antitrust violator vendor list may offer evidence on any
238 relevant issue. An affidavit alone does not constitute competent
239 substantial evidence that the person has not been convicted or
240 is not an affiliate of a person so convicted or held civilly
241 liable. Upon establishment of a prima facie case that it is in
242 the public interest for the person or affiliate to whom the
243 department has given notice to be put on the antitrust violator
244 vendor list, the person or affiliate may prove by a
245 preponderance of the evidence that it would not be in the public
246 interest to put him or her on the antitrust violator vendor
247 list, based upon evidence addressing the factors in subparagraph
248 3.
249 (d)1. If a person has been charged or accused of any state
250 or federal antitrust law in a civil or criminal proceeding
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251 brought by the Attorney General, a state attorney, the Federal
252 Trade Commission, or the United States Department of Justice on
253 or after July 1, 2021, the Attorney General may, by a finding of
254 probable cause that a person has likely violated the underlying
255 antitrust laws, temporarily place such person on the antitrust
256 violator vendor list until such proceeding has concluded.
257 2. If probable cause exists, the Attorney General shall
258 notify the person in writing of its intent to temporarily place
259 the name of that person on the antitrust violator vendor list,
260 and of the person's right to a hearing, the procedure that must
261 be followed, and the applicable time requirements. If the person
262 does not request a hearing, the Attorney General shall enter a
263 final order temporarily placing the name of the person on the
264 antitrust violator vendor list. A person may not be placed on
265 the antitrust violator vendor list without receiving an
266 individual notice of intent from the Attorney General.
267 3. Within 21 days after receipt of the notice of intent,
268 the person may file a petition for a formal hearing pursuant to
269 ss. 120.569 and 120.57(1) to determine whether it is in the
270 public interest for the person to be temporarily placed on the
271 antitrust violator vendor list. A person may not file a petition
272 for an informal hearing under s. 120.57(2). The procedures of
273 chapter 120 shall apply to any formal hearing under this
274 paragraph.
275 4. In determining whether it is in the public interest to
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276 place a person on the antitrust violator vendor list under this
277 paragraph, the administrative law judge shall consider the
278 following factors:
279 a. The likelihood the person committed the antitrust
280 violation.
281 b. The nature and details of the antitrust violation.
282 c. The degree of culpability of the person proposed to be
283 placed on the antitrust violator vendor list.
284 d. The needs of public entities for additional competition
285 in the procurement of goods and services in their respective
286 markets.
287 5. This paragraph does not apply to affiliates.
288 (e)1. A person or affiliate may be removed from the
289 antitrust violator vendor list subject to such terms and
290 conditions as may be prescribed by the administrative law judge
291 upon a determination that removal is in the public interest. In
292 determining whether removal would be in the public interest, the
293 administrative law judge must consider any relevant factors,
294 including, but not limited to, the factors identified in
295 subparagraph (c)3. Upon proof that a person was found not guilty
296 or not civilly liable, the antitrust violation case was
297 dismissed, the court entered a finding in the person's favor,
298 the person's conviction or determination of liability has been
299 reversed on appeal, or that the person has been pardoned, the
300 administrative law judge shall determine that removal of the
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301 person or an affiliate of that person from the antitrust
302 violator vendor list is in the public interest. A person or
303 affiliate on the antitrust violator vendor list may petition for
304 removal from the list no sooner than 6 months after the date a
305 final order is entered pursuant to this section but may petition
306 for removal at any time if the petition is based upon a reversal
307 of the conviction or liability on appellate review or pardon.
308 The petition must be filed with the department, and the
309 proceeding must be conducted pursuant to the procedures and
310 requirements of this subsection.
311 2. If the petition for removal is denied, the person or
312 affiliate may not petition for another hearing on removal for a
313 period of 9 months after the date of denial, unless the petition
314 is based upon a reversal of the conviction on appellate review
315 or a pardon. The department may petition for removal before the
316 expiration of such period if, in its discretion, it determines
317 that removal would be in the public interest.
318 (4) The conviction of a person or a person held civilly
319 liable for an antitrust violation, or placement on the antitrust
320 violator vendor list, does not affect any rights or obligations
321 under any contract, franchise, or other binding agreement which
322 predates such conviction or placement on the antitrust violator
323 vendor list.
324 (5) A person who has been placed on the antitrust violator
325 vendor list is not a qualified applicant for economic incentives
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326 under chapter 288, and such entity and shall not be qualified to
327 receive such economic incentives.
328 (6) This section does not apply to any activities
329 regulated by the Public Service Commission or to the purchase of
330 goods or services made by any public entity from the Department
331 of Corrections, from the nonprofit corporation organized under
332 chapter 946, or from any accredited nonprofit workshop certified
333 under ss. 413.032-413.037.
334 (7) This section may only be enforced to the extent not
335 inconsistent with federal law and notwithstanding any other
336 provision of state law.
337 Section 3. Section 501.2041, Florida Statutes, is created
338 to read:
339 501.2041 Unlawful acts and practices by social media
340 platforms.—
341 (1) As used in this section, the term:
342 (a) "Algorithm" means a mathematical set of rules that
343 specify how a group of data behaves that will assist in ranking
344 search results and maintaining order or that is used in sorting
345 or ranking content or material based on relevancy or other
346 factors instead of using published time or chronological order
347 of such content or material.
348 (b) "Censor" includes any action taken by a social media
349 platform to delete, regulate, restrict, edit, alter, inhibit the
350 publication or republication of, suspend a right to post,
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351 remove, or post an addendum to any content or material posted by
352 a user. This term also includes actions to inhibit the ability
353 of a user to be viewable by or to interact with another user of
354 the social media platform.
355 (c) "Deplatform" means the action or practice by a social
356 media platform to permanently delete or ban a user or to
357 temporarily delete or ban a user from the social media platform
358 for more than 60 days.
359 (d) "Journalistic enterprise" means an entity that:
360 1. Publishes in excess of 100,000 words available online
361 with at least 50,000 paid subscribers or 100,000 monthly active
362 users;
363 2. Publishes 100 hours of audio or video available online
364 with at least 100 million viewers annually;
365 3. Operates a cable channel that provides more than 40
366 hours of content per week to more than 100,000 cable television
367 subscribers; or
368 4. Operates under a broadcast license issued by the
369 Federal Communications Commission.
370 (e) "Post-prioritization" means action by a social media
371 platform to place, feature, or prioritize certain content or
372 material ahead of, below, or in a more or less prominent
373 position than others in a newsfeed, feed, view, or search
374 results. The term does not include post-prioritization of
375 content and material based on payments by a third party,
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376 including other users, to the social media platform.
377 (f) "Shadow ban" means action by a social media platform,
378 through any means, whether the action is determined by a natural
379 person or an algorithm, to limit or eliminate the exposure of a
380 user or content or material posted by a user to other users of
381 the social media platform. This term includes acts of shadow
382 banning by a social media platform that are not readily apparent
383 to a user.
384 (g) "Social media platform" means any information service,
385 system, Internet search engine, or access software provider that
386 does business in the state, and provides or enables computer
387 access by multiple users to a computer server, including an
388 Internet platform and/or a social media site. The Internet
389 platform or social media site may be a sole proprietorship,
390 partnership, limited liability company, corporation,
391 association, or other legal entity that does business in the
392 state and that satisfies at least one of the following
393 thresholds:
394 1. Has annual gross revenues in excess of $100 million, as
395 adjusted in January of each odd-numbered year to reflect any
396 increase in the Consumer Price Index.
397 2. Has at least 100 million monthly individual platform
398 participants globally.
399 (h) "User" means a person who resides or is domiciled in
400 the state and who has an account on a social media platform,
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401 regardless of whether the person posts or has posted content or
402 material to the social media platform.
403 (2) A social media platform that fails to comply with any
404 of the provisions of paragraphs (a)-(j) commits an unfair or
405 deceptive act or practice as specified in s. 501.204.
406 (a) A social media platform must publish the standards,
407 including detailed definitions, it uses or has used for
408 determining how to censor, deplatform, and shadow ban.
409 (b) A social media platform must apply censorship,
410 deplatforming, and shadow banning standards in a consistent
411 manner among its users on the platform.
412 (c) A social media platform must inform each user about
413 any changes to its user rules, terms, and agreements before
414 implementing the changes and may not make changes more than once
415 every 30 days.
416 (d) A social media platform may not censor a user's
417 content or material or deplatform a user from the social media
418 platform:
419 1. Without notifying the user who posted or attempted to
420 post the content or material; or
421 2. In a way that violates this part.
422 (e) A social media platform must:
423 1. Provide a mechanism that allows a user to request the
424 number of other individual platform participants who were
425 provided or shown the user's content or posts.
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426 2. Provide, upon request, a user with the number of other
427 individual platform participants who were provided or shown
428 content or posts.
429 (f) A social media platform must:
430 1. Categorize algorithms used for post-prioritization and
431 shadow banning.
432 2. Allow a user to opt out of post-prioritization and
433 shadow banning algorithm categories to allow sequential or
434 chronological posts and content.
435 (g) A social media platform must provide users with an
436 annual notice on the use of algorithms for post-prioritization
437 and shadow banning and reoffer annually the opt-out opportunity
438 in subparagraph (2)(f)2.
439 (h) A social media company may not apply or use post-
440 prioritization or shadow banning algorithms for content and
441 material posted by or about a user who is known by the social
442 media platform to be a candidate as defined in s. 106.011(3)(e),
443 beginning from the date of qualification and ending on the date
444 of the election or the date such candidate for office ceases to
445 be a candidate before the date of election. Post-prioritization
446 of certain content or material from or about a candidate for
447 office based on payments to the social media platform by such
448 candidate for office or a third party is not a violation of this
449 paragraph. Social media platforms must provide users with a
450 method to identify themselves as qualified candidates, and may
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451 confirm such qualification by reviewing the website of the
452 Division of Elections of the Department of State.
453 (i) A social media platform must allow a user who has been
454 deplatformed to access or retrieve all of the user's
455 information, content, material, and data for at least 60 days
456 after being deplatformed.
457 (j) A social media platform may not take any action to
458 censor, deplatform, or shadow ban a journalistic enterprise
459 based on the content of its publication or broadcast. Post-
460 prioritization of certain journalistic enterprise content based
461 on payments to the social media platform by such journalistic
462 enterprise is not a violation of this paragraph.
463 (3) For purposes of subparagraph (2)(d)1., a notification
464 must:
465 (a) Be in writing.
466 (b) Be delivered via electronic mail or direct electronic
467 notification to the user within 30 days of the censoring action.
468 (c) Include a thorough rationale explaining the reason
469 that the social media platform censored the user.
470 (d) Include a precise and thorough explanation of how the
471 social media platform became aware of the censored content or
472 material, including a thorough explanation of the algorithms
473 used, if any, to identify or flag the user's content or material
474 as objectionable.
475 (4) Notwithstanding any other provisions of this section,
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476 a social media platform is not required to notify a user if the
477 censored content or material is obscene as defined in s.
478 847.001.
479 (5) If the department, by its own inquiry or as a result
480 of a complaint, suspects that a violation of this section is
481 imminent, occurring, or has occurred, the department may
482 investigate the suspected violation in accordance with this
483 part. Based on its investigation, the department may bring a
484 civil or administrative action under this part.
485 (6) A user may only bring a private cause of action for
486 violations of paragraph (2)(b) or subparagraph (2)(d)1. In a
487 private cause of action brought under paragraph (2)(b) or
488 subparagraph (2)(d)1., the court may award the following damages
489 to the user:
490 (a) Up to $100,000 in statutory damages per proven claim.
491 (b) Actual damages.
492 (c) If aggravating factors are present, punitive damages.
493 (d) Other forms of equitable relief.
494 (e) If the user was deplatformed in violation of paragraph
495 (2)(b), costs and reasonable attorney fees.
496 (7) For purposes of bringing an action under subsection
497 (2) or subsection (6), each failure to comply with the
498 individual provisions of subsection (2) shall be treated as a
499 separate violation, act, or practice.
500 (8) In an investigation by the department into alleged
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501 violations of this section, the department's investigative
502 powers include, but are not limited to, the ability to subpoena
503 any algorithm used by a social media platform related to any
504 alleged violation.
505 (9) This section may only be enforced to the extent not
506 inconsistent with federal law and 47 U.S.C. s. 230(e)(3), and
507 notwithstanding any other provision of state law.
508 Section 4. Subsection (2) of section 501.212, Florida
509 Statutes, is amended to read:
510 501.212 Application.—This part does not apply to:
511 (2) Except as provided in s. 501.2041, a publisher,
512 broadcaster, printer, or other person engaged in the
513 dissemination of information or the reproduction of printed or
514 pictorial matter, insofar as the information or matter has been
515 disseminated or reproduced on behalf of others without actual
516 knowledge that it violated this part.
517 Section 5. If any provision of this act or the application
518 thereof to any person or circumstance is held invalid, the
519 invalidity shall not affect other provisions or applications of
520 the act which can be given effect without the invalid provision
521 or application, and to this end the provisions of this act are
522 declared severable.
523 Section 6. This act shall take effect July 1, 2021.
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