Committee Report

January 24, 2024

 

H. 4700

 

Introduced by Reps. W. Newton, Pope, Guffey, Chapman, Leber, Beach, Kilmartin, Cromer, Oremus, O'Neal, Vaughan, Nutt, Haddon, Burns, Chumley, West, Felder, Guest, McCravy, Bailey, Brittain, Robbins and Sessions

 

S. Printed 01/24/24--H.

Read the first time January 09, 2024

 

________

 

The committee on House Judiciary

To whom was referred a Bill (H. 4700) to amend the South Carolina Code of Laws by adding Article 9 to Chapter 5, Title 39 so as to provide definitions; to provide that a social media company may not, etc., respectfully

Report:

That they have duly and carefully considered the same, and recommend that the same do pass with amendment:

 

    Amend the bill, as and if amended, by striking all after the enacting words and inserting:

SECTION 1.  Chapter 5, Title 39 of the S.C. Code is amended by adding:

 

Article 9

 

South Carolina Social Media Regulation

 

    Section 39-5-810.  As used in this article:

       (1) "Account holder" means a person who has, or opens, an account or profile to use a social media company's platform.

       (2) "Interactive computer service" means an information service, information system, or information access software provider that provides or enables computer access by multiple users to a computer server and provides access to the Internet.  An interactive computer service includes a web service, a web system, a website, a web application, or a web portal.

       (3) "Minor" means an individual under circumstances where a social media company reasonably believes or has actual knowledge that the individual is under the age of eighteen.  A social media company shall treat an individual as a minor if the social media company verifies that the individual is under the age of eighteen as provided in this chapter.

       (4) "Office" means the South Carlina Office of Attorney General.

       (5) "Post" means content that an account holder makes available on a social media platform for other account holders or users to view.

       (6) "Social media company" means a person or entity that provides a social media platform that has at least five million account holders worldwide and is an interactive computer service.

       (7)(a) "Social media platform" means a public or semipublic Internet-based service or application that has users in South Carolina and that meets all of the following:

               (i) The service or application connects users in order to allow users to interact socially with each other within the service or application.  A service or application that provides email or direct messaging services, enterprise cloud storage services, enterprise cybersecurity services, educational devices, or enterprise collaboration tools for K-12 schools are not considered to meet this criterion on the basis of that function alone.

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

                  (A) construct a public or semipublic profile for the purposes of signing into and using the service or application;

                  (B) populate a list of other users with whom an individual shares a social or virtual connection within the system, including subscribing to content related to another user; and

                  (C) create or post content viewable by other users including, but not limited to, on message boards, in chat rooms, on video channels, or through a landing page or main feed that presents the user with content generated by other users.

           (b) "Social media platform" may not include an online service, website, or application where the predominant or exclusive function is any of the following:

               (i) electronic mail;

               (ii) a service that, pursuant to its terms of use, does not permit minors to use the platform and utilizes commercially reasonable age assurance mechanisms to attempt to prohibit minors from becoming an account holder or user;

               (iii) a streaming service that provides only licensed media in a continuous flow from the service, website, or application to the end user and does not obtain a license to the media from a user or account holder by agreement to its terms of service;

               (iv) news, sports, entertainment, or other content that is preselected by the provider and not user generated, and any chat, comment, or interactive functionality that is provided incidental to, directly related to, or dependent upon provisions of the content;

               (v) online shopping, electronic commerce, or self-service support if the interaction with other users or account holders is generally limited to the ability to upload a post and comment on reviews, the ability to seek support related to products or services, the ability to display lists or collections of goods for sale or wish lists, or any other function that is focused on online shopping, electronic commerce, or self-service support rather than interaction between users or account holders;

               (vi) interactive gaming, virtual gaming, or an online service that allows the creation and uploading of content and the communication related to that content for the purpose of interactive gaming, educational entertainment, or associated entertainment;

               (vii) photograph editing that has an associated photograph hosting service if the interaction with other users or account holders is generally limited to liking or commenting;

               (viii) single-purpose community groups for public safety if the interaction with other users or account holders is limited to that single purpose and the community group has guidelines or policies against illegal content;

               (ix) career development opportunities, including professional networking, job skills, learning certifications, and job posting and application services;

               (x) business-to-business software;

               (xi) a teleconferencing or videoconferencing service that allows reception and transmission of audio and video signals for real-time communication;

               (xii) cloud storage;

               (xiii) shared document collaboration;

               (xiv) cloud computing services, which may include cloud storage and shared document collaboration;

               (xv) providing access to or interacting with data visualization platforms, libraries, or hubs;

               (xvi) permitting comments on digital news website if the news content is posted by only the provider of the digital news website;

               (xvii) providing or obtaining technical support for a platform product or service;

               (xviii) academic, scholarly, or genealogical research;

               (xix) Internet access and broadband service;

               (xx) a classified advertising service in which the provider of the online service, website, or application is limited to all of the following:

                      (A) permitting only the sale of goods;

                      (B) prohibiting the solicitation of personal service;

                      (C) posting or creating a substantial amount of the content; and

                      (D) providing the ability to chat, comment, or interact with other users only if it is directly related to the provider's content;

               (xxi) an online service, website, or application that is used by or under the direction of an educational entity, including a learning management system, a student engagement program, or a subject or skill-specific program, where the majority of the content is created or posted by the provider of the online service, website, or application and the ability to chat, comment, or interact with other users is directly related to the provider's content.

       (8) "South Carolina account holder" means a person who is a resident of South Carolina and an account holder, including a South Carolina minor account holder.

       (9) "South Carolina minor account holder" means a South Carolina account holder who is a minor.

       (10) "South Carolina resident" means an individual who currently resides in South Carolina.

       (11) "User" means a person who has access to view all, or some of, the posts on a social media platform, but is not an account holder.

 

    Section 39-5-820.  Beginning March 1, 2025, a social media company shall make commercially reasonable efforts to verify the age of South Carolina account holders with a level of certainty appropriate to the risks that arise from the information management practices of the social media company or apply the accommodations afforded to minors pursuant to this chapter to all account holders.

    (B) A social media company may not permit a South Carolina resident who is a minor to be an account holder on the social media company's social media platform unless the minor has the express consent of a parent or guardian. Acceptable methods of obtaining express consent from a parent or guardian include any of the following:

       (1) providing a form for the minor's parent or guardian to sign and return to the digital service provider by common carrier, facsimile, or electronic;

       (2) providing a toll-free telephone number for the minor's parent or guardian to call to consent;

       (3) coordinating a call with a minor's parent or guardian over video conferencing technology;

       (4) collecting information related to the government-issued identification of the minor's parent or guardian and deleting that information after confirming the identity of the minor's parent or guardian;

       (5) allowing the minor's parent or guardian to provide consent by responding to an email and taking additional steps to verify the identity of the minor's parent or guardian; or

       (6) any other commercially reasonable method of obtaining consent in light of available technology.

    (C) Notwithstanding any other provision of this chapter, a social media company may not permit a South Carolina resident who is a minor to hold or open an account on a social media platform if the minor is ineligible to hold or open an account pursuant to any other provision of state or federal law.

 

    Section 39-5-830.  Beginning March 1, 2025, for a South Carolina minor account holder, a social media company shall:

       (1) prohibit adults from direct messaging a South Carolina minor account holder unless the minor is already connected to the adult on the service;

       (2) prohibit the display of any advertising in the account based on the South Carolina minor account holder's personal information, except age and location;

       (3) prohibit the collection or use of personal information from the posts, content, messages, text, or usage activities of the account other than information beyond what is adequate, relevant, and reasonably necessary in relation to the purposes for which such information is collected, as disclosed;

       (4) make commercially reasonable efforts to develop a policy or mechanism to filter and prevent access by minor account holders to content that does any of the following:

           (a) advocates for the use of force, is directed to inciting or producing imminent lawless action, and is likely to incite or produce such action;

           (b) advocates for self-harm, is directed to inciting or producing imminent self-harm, or is likely to incite or produce such action;

           (c) advocates for the destruction of personal or public property within a school setting in South Carolina; or

           (d) displays visual depictions of sexual conduct as that term is defined in S.C. Code Ann. Section 16-15-305(C)(1); and

           (5) report to the State Law Enforcement Division, local law enforcement agencies, and local

school districts, as appropriate, any content posted by minors in South Carolina that is in violation of this section.

 

    Section 39-5-840.  Beginning March 1, 2025, a social media company shall provide a parent or guardian who has given parental consent for a South Carolina minor account holder as provided in this chapter with a means for the minor account holder or the parent or guardian to initiate account supervision. Such supervision must include the ability for the parent to view privacy settings of the minor's account, set daily time limits for the service, schedule breaks, and offer the minor the option to set up parental notifications when the minor reports a person or issue.

 

    Section 39-5-850.  (A) The Office of Attorney General may receive complaints alleging a violation of this chapter.

    (B) The Office of Attorney General may investigate any complaint to determine whether a violation has occurred.

 

    Section 39-5-860.  Except for a private right of action pursuant to Section 39-5-890, the Office of Attorney General has the exclusive authority to administer and enforce the requirements of this chapter.

 

    Section 39-5-870.  (A) The Office of Attorney General shall compile an annual report that contains an accounting of all of the following information:

       (1) all administrative fines and civil penalties assessed during the year;

       (2) all administrative fines and civil penalties collected during the year; and

       (3) the use of funds from all administrative fines and civil penalties collected during the year.

    (B) The Office of Attorney General may update or correct the report as new information becomes available.

    (C) The Office of Attorney General shall maintain the report, which must be published on its website.

 

    Section 39-5-880.  (A) Beginning March 1, 2025, a person may bring an action against a person that does not comply with a requirement of this chapter.

    (B) A suit filed pursuant to the authority of this section must be filed in the circuit court for the circuit in which a person bringing the action resides.

    (C) If a court finds that a person has violated a provision of this chapter, the person who brings an action pursuant to this section is entitled to:

       (1) an award of reasonable attorneys' fees and court costs; and

       (2) an amount equal to the greater of:

           (a) two thousand five hundred dollars for each incident of violation; or

           (b) actual damages for financial, physical, and emotional harm incurred by the person bringing the action, if the court determines that the harm is a direct consequence of the violation.

 

    Section 39-5-890.  (A)(1) By March 1, 2025, the Department of Education shall develop model programs for educating students regarding online safety while using the Internet, taking into consideration educational materials on this topic developed by other states as well as any other materials suggested by educational experts, child psychologists, and technology companies that promote child online safety issues.

       (2) The model programs provided for in this subsection must include one or more model programs for students in grades six through twelve which:

           (a) include instruction regarding:

               (i) the social, emotional, and physical effects of social media on users;

               (ii) the negative effects of social media on the mental health of users including, but not limited to, addiction;

               (iii) the distribution of disinformation and misinformation on social media;

               (iv) how social media manipulates or influences thoughts and behaviors;

                (v) the permanency and risks of sharing materials online;

                (vi) how to maintain personal security and identify cyberbullying, predatory behavior, and human trafficking on the Internet and social media; and

                (vii) how to report suspicious behavior encountered on the Internet and social media to appropriate persons and authorities; and

           (b) may include information regarding the benefits of social media use, such as supporting career readiness for future academic or employment opportunities, sharing information with familiar family and friends, and safely connecting with other users with similar interests.

       (3) The Department of Education shall periodically update the model programs provided for in this subsection to reflect changes in Internet and social media use, emergent technologies, social and psychological research, and information concerning new threats to teenagers and young adults using social media platforms and other online communication technologies.

       (4) The Department of Education shall publish on its website information relating to the model programs provided for in this section, including recommended curricula and instructional materials.

    (B) Each local board of education may incorporate into its instructional program a component on online Internet safety, including social media safety, to be taught on a schedule as determined by the local board of education.

 

    Section 39-5-900.  A waiver or limitation, or a purported waiver or limitation, of any of the following is void as unlawful, is against public policy, and a court or arbitrator may not enforce or give effect to the waiver, notwithstanding any contract or choice-of-law provision in a contract:

       (1) a protection or requirement provided pursuant to this chapter;

       (2) the right to cooperate with the division or to file a complaint with the division; or

       (3) the right to a private right of action as provided pursuant to this chapter.

 

SECTION 2.  If any section, subsection, paragraph, subparagraph, sentence, clause, phrase, or word of this act is for any reason held to be unconstitutional or invalid, such holding shall not affect the constitutionality or validity of the remaining portions of this act, the General Assembly hereby declaring that it would have passed this act, and each and every section, subsection, paragraph, subparagraph, sentence, clause, phrase, and word thereof, irrespective of the fact that any one or more other sections, subsections, paragraphs, subparagraphs, sentences, clauses, phrases, or words hereof may be declared to be unconstitutional, invalid, or otherwise ineffective.

 

SECTION 3.  This act takes effect upon approval by the Governor.

 

Renumber sections to conform.

Amend title to conform.

 

WESTON NEWTON for Committee.

 

 

________

 

 

 

 

 

 

 

 

 

A bill

 

TO AMEND THE SOUTH CAROLINA CODE OF LAWS BY ADDING article 9 to chapter 5, title 39 SO AS TO PROVIDE DEFINITIONS; TO PROVIDE THAT A SOCIAL MEDIA COMPANY MAY NOT PERMIT CERTAIN MINORS TO BE ACCOUNT HOLDERS; TO PROVIDE REQUIREMENTS FOR SOCIAL MEDIA COMPANIES; TO PROVIDE THAT A SOCIAL MEDIA COMPANY SHALL PROVIDE CERTAIN PARENTS OR GUARDIANS WITH CERTAIN INFORMATION; TO PROVIDE THAT A SOCIAL MEDIA COMPANY SHALL RESTRICT SOCIAL MEDIA ACCESS TO MINORS DURING CERTAIN HOURS; TO PROVIDE FOR CONSUMER COMPLAINTS; TO PROVIDE THAT THE CONSUMER SERVICES DIVISION HAS AUTHORITY TO ADMINISTER AND ENFORCE CERTAIN REQUIREMENTS; TO PROVIDE FOR AN ANNUAL REPORT; TO PROVIDE FOR A CAUSE OF ACTION; and TO PROVIDE THAT CERTAIN WAIVERS AND LIMITATIONS ARE VOID.

 

Be it enacted by the General Assembly of the State of South Carolina:

 

SECTION 1.  Chapter 5, Title 39 of the S.C. Code is amended by adding:

 

    Article 9

 

    South Carolina Social Media Regulation

 

    Section 39-5-810.  As used in this article:

       (1) "Account holder" means a person who has, or opens, an account or profile to use a social media company's platform.

       (2) "Director" means the director of the Consumer Services Division under the Department of Consumer Affairs.

       (3) "Division" means the Consumer Services Division.

       (4) "Educational entity" means a public school, an LEA, a charter school, the South Carolina School for the Deaf and the Blind, a private school, a denominational school, a parochial school, a community college, a state college, a state university, or a nonprofit private postsecondary educational institution.

       (5)(a) "Interactive computer service" means an information service, information system, or information access software provider that:

           (i) provides or enables computer access by multiple users to a computer server; and

           (ii) provides access to the Internet.

       (b) "Interactive computer service" includes:

           (i) a web service;

           (ii) a web system;

           (iii) a website;

           (iv) a web application; or

           (v) a web portal.

       (6) "Minor" means an individual who is under the age of eighteen and has not been:

           (a) emancipated as decreed by the family court; or

           (b) married.

       (7) "Post" means content that an account holder makes available on a social media platform for other account holders or users to view.

       (8) "Social media company" means a person or entity that:

           (a) provides a social media platform that has at least five million account holders worldwide; and

           (b) is an interactive computer service.

       (9)(a) "Social media platform" means an online forum that a social media company makes available for an account holder to:

               (i) create a profile;

               (ii) upload posts;

               (iii) view the posts of other account holders; and

               (iv) interact with other account holders or users.

            (b) "Social media platform" does not include an online service, website, or application:

               (i) where the predominant or exclusive function is:

                  (A) electronic mail;

                  (B) direct messaging consisting of text, photos, or videos that are sent between devices by electronic means, where messages are:

                      (I) shared between the sender and the recipient;

                      (II) only visible to the sender and the recipient; and

                      (III) are not posted publicly;

                  (C) a streaming service that:

                      (I) provides only licensed media in a continuous flow from the service, website, or application to the end user; and

                      (II) does not obtain a license to the media from a user or account holder by agreement to its terms of service;

                  (D) news, sports, entertainment, or other content that is preselected by the provider and not user generated, and any chat, comment, or interactive functionality that is provided incidental to, directly related to, or dependent upon provision of the content;

                  (E) online shopping or e-commerce, if the interaction with other users or account holders is generally limited to:

                      (I) the ability to upload a post and comment on reviews;

                      (II) the ability to display lists or collections of goods for sale or wish lists; and

                      (III) other functions that are focused on online shopping or e-commerce rather than interaction between users or account holders;

                  (F) interactive gaming, virtual gaming, or an online service, that allows the creation and uploading of content for the purpose of interactive gaming, entertainment, or associated entertainment, and the communication related to that content;

                  (G) photo editing that has an associated photo hosting service, if the interaction with other users or account holders is generally limited to liking or commenting;

                  (H) a professional creative network for showcasing and discovering artistic content, if the content is required to be nonpornographic;

                  (I) single-purpose community groups for public safety if:

                      (I) the interaction with other users or account holders is generally limited to that single purpose; and

                      (II) the community group has guidelines or policies against illegal content;

                  (J) providing career development opportunities, including professional networking, job skills, learning certifications, and job posting and application services;

                  (K) business-to-business software;

                  (L) a teleconferencing or videoconferencing service that allows reception and transmission of audio and video signals for real-time communication;

                  (M) cloud storage;

                  (N) shared document collaboration;

                  (O) cloud computing services, which may include cloud storage and shared document collaboration;

                  (P) providing access to or interacting with data visualization platforms, libraries, or hubs;

                  (Q) to permit comments on a digital news website, if the news content is posted only by the provider of the digital news website;

                  (R) providing or obtaining technical support for a platform, product, or service;

                  (S) academic or scholarly research; or

                  (T) genealogical research;

               (ii) where:

                  (A) the majority of the content that is posted or created is posted or created by the provider of the online service, website, or application; and

                  (B) the ability to chat, comment, or interact with other users is directly related to the provider's content;

               (iii) that is a classified ad service that only permits the sale of goods and prohibits the solicitation of personal services; or

               (iv) that is used by and under the direction of an educational entity, including:

                  (A) a learning management system;

                  (B) a student engagement program; and

                  (C) a subject or skill-specific program.

       (10)(a) "South Carolina account holder" means a person who is a South Carolina resident and an account holder.

           (b) "South Carolina account holder" includes a South Carolina minor account holder.

       (11) "South Carolina minor account holder" means a South Carolina account holder who is a minor.

       (12) "South Carolina resident" means an individual who currently resides in South Carolina.

        (13) "User" means a person who has access to view all, or some of, the posts on a social media platform, but is not an account holder.

 

    Section 39-5-820.  (A) Beginning March 1, 2025, a social media company may not permit a South Carolina resident who is a minor to be an account holder on the social media company's social media platform unless the South Carolina resident has the express consent of a parent or guardian.

    (B) Notwithstanding any other provisions of this article, a social media company may not permit a South Carolina resident who is a minor to hold or open an account on a social media platform if the minor is ineligible to hold or open an account under any other provision of state or federal law.

    (C)(1) Beginning March 1, 2025, a social media company shall verify the age of an existing or new South Carolina account holder and, if the existing or new account holder is a minor, confirm that a minor has consent as required under subsection (A):

           (a) for a new account, at the time the South Carolina resident opens the account; or

           (b) for a South Carolina account holder who has not provided age verification as required under this section, within fourteen calendar days of the South Carolina account holder's attempt to access the account.

       (2) If a South Carolina account holder fails to meet the verification requirements of this section within the required time period, the social media company shall deny access to the account:

           (a) upon the expiration of the time period; and

           (b) until all verification requirements are met.

    (D) The division, with consideration of stakeholder input, shall promulgate regulations to:

       (1) establish processes or means by which a social media company may meet the age verification requirements of this article;

       (2) establish acceptable forms or methods of identification, which may not be limited to a valid identification card issued by a government entity;

       (3) establish requirements for providing confirmation of the receipt of any information provided by a person seeking to verify age pursuant to this article;

       (4) establish processes or means to confirm that a parent or guardian has provided consent for the minor to open or use an account as required pursuant to this section;

       (5) establish requirements for retaining, protecting, and securely disposing of any information obtained by a social media company or its agent as a result of compliance with the requirements of this article;

       (6) require that information obtained by a social media company or its agent in order to comply with the requirements of this article are only retained for the purpose of compliance and may not be used for any other purpose;

       (7) if the division permits an agent to process verification requirements required by this section, require that the agent have its principal place of business in the United States of America;

       (8) require other applicable state agencies to comply with any regulations promulgated pursuant to this section; and

       (9) ensure that the rules are consistent with state and federal law.

 

    Section 39-5-830.  Beginning March 1, 2025, a social media company, for a social media platform account held by a South Carolina minor account holder:

       (1) shall prohibit direct messaging between the account and any other user that is not linked to the account through friending;

       (2) may not show the account in search results for any user that is not linked to the account through friending;

       (3) shall prohibit the display of any advertising in the account;

       (4) may not collect or use any personal information from the posts, content, messages, text, or usage activities of the account other than information that is necessary to comply with, and to verify compliance with, state or federal law, which information includes a parent or guardian's name, a birth date, and any other information required to be submitted pursuant to this section; and

       (5) shall prohibit the use of targeted or suggested groups, services, products, posts, accounts, or users in the account.

 

    Section 39-5-840.  Beginning March 1, 2025, a social media company shall provide a parent or guardian who has given parental consent for a South Carolina minor account holder pursuant to Section 39-5-820 with a password or other means for the parent or guardian to access the account, which must allow the parent or guardian to view:

       (1) all posts the South Carolina minor account holder makes under the social media platform account; and

       (2) all responses and messages sent to or by the South Carolina minor account holder in the social media platform account.

 

    Section 39-5-850.  (A) Beginning March 1, 2025, a social media company shall prohibit a South Carolina minor account holder from having access to the South Carolina minor account holder's account during the hours of 10:30 p.m. to 6:30 a.m., unless the access is modified according to another requirement of this section.

    (B) Time of day pursuant to this section must be calculated based on the Internet protocol address being used by the South Carolina minor account holder at the time of attempting access.

    (C) A social media company shall provide options for a parent or guardian with access to an account pursuant to Section 39-5-840 to:

       (1) change or eliminate the time-of-day restriction described in subsection (A); and

       (2) set a limit on the number of hours each day that a South Carolina minor account holder may use the account.

    (D) A social media company may not permit a South Carolina minor account holder to change or bypass restrictions on access as required by this section.

    (E) Notwithstanding any other provisions of this section, a social media company shall permit a parent or guardian with access to an account pursuant to Section 39-5-840 to access the account without time restrictions.

 

    Section 39-5-860.  (A) The division shall receive consumer complaints alleging a violation of this article.

    (B) A person may file a consumer complaint that alleges a violation pursuant to this article with the division.

    (C) The division shall investigate a consumer complaint to determine whether a violation occurred.

 

    Section 39-5-870.  (A) Except for a private right of action pursuant to Section 39-5-890, the division has the exclusive authority to administer and enforce the requirements of this article.

    (B) The Attorney General, upon request, shall give legal advice to, and act as counsel for, the division in the exercise of the division's responsibilities pursuant to this article.

    (C)(1) Subject to the ability to cure an alleged violation under subsection (D):

           (a) the division director may impose an administrative fine of up to two thousand five hundred dollars for each violation; and

           (b) the division may bring an action in a court of competent jurisdiction to enforce a provision of this article.

       (2) In a court action by the division to enforce a provision of this article, the court may:

           (a) declare that the act or practice violates a provision of this article;

           (b) issue an injunction;

           (c) order disgorgement of any money received in violation of this article;

           (d) order payment of disgorged money to an injured purchaser or consumer;

           (e) impose a civil penalty of up to two thousand five hundred dollars for each violation of this article;

           (f) award actual damages to an injured purchaser or consumer; and

           (g) award any other relief that the court considers to be reasonable and necessary.

    (D)(1) At least thirty days before the day on which the division initiates an enforcement action against a person that is subject to the requirements of this article, the division shall provide the person with:

           (a) written notice that identifies each alleged violation; and

           (b) an explanation of the basis for each allegation.

       (2) Except as provided under item (3), the division may not initiate an action if the person:

           (a) cures the noticed violation within thirty days after the day on which the person receives the notice described in item (1); and

           (b) provides the division with a written statement that:

               (i) the person has cured the violation; and

               (ii) no further violation will occur.

       (3) The division may initiate a civil action against a person that:

           (a) fails to cure a violation after receiving the notice described in item (1); or

           (b) after curing a noticed violation and providing a written statement in accordance with item (2), commits another violation of the same provision.

    (E) If a court of competent jurisdiction grants judgment or injunctive relief to the division, the court shall award the division:

       (1) reasonable attorneys' fees;

       (2) court costs; and

       (3) investigative fees.

    (F)(1) A person who violates an administrative or court order issued for a violation of this article, is subject to a civil penalty of no more than five thousand dollars for each violation.

       (2) A civil penalty authorized pursuant to this section may be imposed in any civil action brought by the division, or by the Attorney General on behalf of the division.

 

    Section 39-5-880.  (A) The division shall compile an annual report:

       (1) evaluating the liability and enforcement provisions of this article, including:

           (a) the effectiveness of the division's efforts to enforce this article; and

           (b) any recommendations for changes to this article;

       (2) summarizing the consumer interactions that are protected and not protected by this article, including a list of alleged violations the division has received; and

       (3) an accounting of:

           (a) all administrative fines and civil penalties assessed during the year;

           (b) all administrative fines and civil penalties collected during the year; and

           (c) the use of department funds.

    (B) The division may update or correct the report as new information becomes available.

    (C) The division shall submit the report to the Speaker of the House of Representatives, the President of the Senate, and the Governor before July first of each year.

 

    Section 39-5-890.  (A) Beginning March 1, 2025, a person may bring an action against a person that does not comply with a requirement of this article.

    (B) A suit filed pursuant to the authority of this section must be filed in the district court for the district in which a person bringing the action resides.

    (C) If a court finds that a person has violated a provision of this article, the person who brings an action pursuant to this section is entitled to:

       (1) an award of reasonable attorneys' fees and court costs; and

       (2) an amount equal to the greater of:

           (a) two thousand five hundred dollars for each incident of violation; or

           (b) actual damages for financial, physical, and emotional harm incurred by the person bringing the action, if the court determines that the harm is a direct consequence of the violation.

 

    Section 39-5-900.  A waiver or limitation, or a purported waiver or limitation, of any of the following is void as unlawful, is against public policy, and a court or arbitrator may not enforce or give effect to the waiver, notwithstanding any contract or choice-of-law provision in a contract:

       (1) a protection or requirement provided pursuant to this article;

       (2) the right to cooperate with the division or to file a complaint with the division; or

       (3) the right to a private right of action as provided pursuant to this article.

 

SECTION 2.  If any section, subsection, paragraph, subparagraph, sentence, clause, phrase, or word of this act is for any reason held to be unconstitutional or invalid, such holding shall not affect the constitutionality or validity of the remaining portions of this act, the General Assembly hereby declaring that it would have passed this act, and each and every section, subsection, paragraph, subparagraph, sentence, clause, phrase, and word thereof, irrespective of the fact that any one or more other sections, subsections, paragraphs, subparagraphs, sentences, clauses, phrases, or words hereof may be declared to be unconstitutional, invalid, or otherwise ineffective.

 

SECTION 3.  This act takes effect upon approval by the Governor.

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