A bill

 

TO AMEND THE SOUTH CAROLINA CODE OF LAWS SO AS TO ENACT THE "STOP HARM FROM ADDICTIVE SOCIAL MEDIA (SHASM) ACT"; AND BY ADDING ARTICLE 9 TO CHAPTER 5, TITLE 39 SO AS TO REQUIRE COVERED SOCIAL MEDIA PLATFORMS TO USE REASONABLE MEANS TO ESTIMATE THE AGE OF CERTAIN ACCOUNT HOLDERS, TO VERIFY THE AGE OF CERTAIN ACCOUNT HOLDERS, TO CREATE DEFAULT ACCOUNT SETTINGS FOR CERTAIN USERS, AND TO CREATE CERTAIN PARENTAL CONSENTS.

 

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

 

SECTION 1.  This act may be cited as the "Stops Harm from Addictive Social Media (SHASM) Act."

 

SECTION 2.  Chapter 5, Title 39 of the S.C. Code is amended by adding:

 

Article 9

 

Stop Harm from Addictive Social Media

 

    Section 39-5-910.  As used in this article:

       (1) "Account holder" means a resident who has an account or a profile with a covered social media platform that is associated by the covered social media platform with a unique identifier during any period in which a covered social media platform knows or should reasonably know is physically located in this State.

    (2) "Addictive features" means:

           (a) infinite scrolling, which means:

               (i) continuously loading content, or content that loads as the account holder scrolls down the page without the need to open a separate page; or

               (ii) seamless content or the use of pages with no visible or apparent end or page breaks;

           (b) display of a profile-exploiting feed;

           (c) push notifications, whether audible, visual, or tactile, designed to call the attention of the account holder to newly posted content, or to user responses to content posted by the account holder, or to inform the account holder about other specific activities or events related to the account holder's account. Push notifications do not include a notification for the purpose of alerting the account holder to incoming calls, text messages, email messages, or similar messages sent by human contacts and delivered by means of any application;

           (d) auto-play video or video that begins to play without the account holder first clicking on the video or on a play button for that video;

           (e) display of personal metrics that indicate the number of times other users have clicked a button or taken other action to indicate their reaction to content posted by the account holder, or have shared or reposted content posted by the account holder; or

           (f) display of awards, badges, tiers, or any form of recognition of the account holder based on hours spent by the account holder on the social media platform, numbers of followers, numbers of postings, frequency or regularity of postings, or any other metric of usage or performance on the social media platform.

       (3) "Child" means a resident under the age of seventeen.

       (4) "Covered social media platform" means a social media platform, including any parent, subsidiary, or affiliate of the social media platform, that collectively generated at least one billion dollars in gross revenues annually, worldwide in one or more of the preceding three years.

       (5) "First trigger date" means, with respect to each account holder and each covered social media platform, the date upon which it first becomes true that the account holder has been on the covered social media platform for twenty-five hours or more within a six-month period following the effective date of this act.

       (6) "Paid commercial advertising" is advertising for which the social media platform receives compensation of any sort in return for displaying the advertising and that seeks to encourage the account holder to purchase a product or service or otherwise engage in a commercial transaction or to follow a link to a website that encourages the account holder to engage in a commercial transaction.

       (7) "Minor" means a resident who is under the age of majority but not including emancipated minors.

       (8) "Notice to a parent" has the meaning established in the Children's Online Privacy Protection Act, 15 U.S.C. Section 6501 and implementing regulations at 16 C.F.R. Part 312.4.

       (9) "Parent" includes any legal guardian of a minor resident.

       (10)(a) "Personal information" means information about an account holder collected online that comprises "personal information" within the meaning of the Children's Online Privacy Protection Act, 15 U.S.C. Section 6501(8) and implementing regulations, and:

               (i) any record of or derived from online activity or history, search history, or online communications of an account holder with respect to any application, website, or social media platform;

               (ii) any photograph or biometric information that is used or could reasonably be used to identify the account holder including, but not limited to, fingerprints, voiceprints, iris or retina imagery scans, facial templates, and gait imagery or metrics; and

               (iii) any geolocation information associated with an account holder or with a device of an account holder.

           (b) The following do not constitute personal information:

               (i) an express search term, request, or selection submitted by the account holder during the current session on the covered social media platform;

               (ii) an identifier used solely for the purpose of directing personal communications to or from the account holder; or

               (iii) information that comprises account holder-selected or parent-selected settings relating to privacy, accessibility, or blocking of age-inappropriate content or technical information concerning the account holder's device.

       (11) "Profile-based paid commercial advertising" means paid commercial advertising that has been selected or prioritized for display to an account holder based in whole or in part on personal information of the account holder. Advertising selected for display to an account holder is not profile-based paid commercial advertising if that selection process considers information about or an estimate of the age of the account holder solely for the purpose of excluding advertisements are not suitable for presentation to minors.

       (12)(a) "Profile-based feed" means a feed in which the material presented has been selected or prioritized by the social media platform for display to an account holder based in whole or in part on personal information of that account holder. Content created by a third party that is displayed to the account holder because the account holder has taken an affirmative step to select the third party's content for inclusion in the feed displayed to the account holder, such as by following, friending, or engaging in a similar action in relation to the third party, and not otherwise selected or prioritized for display to the account holder based on personal information, may not render such feed a profile-based feed.

           (b) An exclusion by a covered social media platform of certain content from the feed of an account holder based on information about or any estimate of the age of an account holder, solely for the purpose of excluding content which is obscene as to children aged seventeen or younger or by a policy of the covered social media platform that the content is not suitable for presentation to children of that age, does not render that feed a profile-based feed.

       (13) "Second trigger date" means, with respect to each account holder and each covered social media platform, the date upon which it first becomes true that the account holder has been on the covered social media platform for fifty hours or more within a six-month period following the effective date of this act.

       (14) "Social media platform" means an internet website or application that is open to the public, allows a user to create an account, and enables an account holder to communicate with other users for the primary purpose of posting and viewing information, comments, messages, images, or videos. The term does not include:

           (a) a broadband internet access service as defined by the Federal Communications Commission;

           (b) an online service, website, or application where the exclusive function is the support of communications, including email or direct messaging consisting of text, photographs, pictures, images, or videos, only between the sender and recipients specifically identified by the sender, without displaying or posting publicly or to other users not specifically identified as the recipients by the sender; or

           (c) an online service, application, or website the content of which consists primarily of information or content that is not generated by the user.

       (15) "Verifiable parental consent" has the meaning established in the Children's Online Privacy Protection Act of 1998, 15 U.S.C. Section 6501(9), and implementing regulations at 16 C.F.R. Part 312.5, with the added requirement that the covered social media platform has retained documentation sufficient to reasonably establish that it has obtained verifiable parental consent within the meaning of those provisions.

 

    Section 39-5-920.  (A) Within fourteen days of the first trigger date, the covered social media platform must use reasonable means and reasonable efforts, taking into consideration available technology and the data in the possession of the covered social media platform, to estimate the age of the account holder. If the covered social media platform is able to conclude with eighty percent confidence that the account holder is over seventeen years of age, the covered social media platform may treat the account holder to be other than a child for purposes of this article. Otherwise, the covered social media platform must treat the account holder as a child for purposes of this article.

    (B) Within fourteen days of the second trigger date, the covered social media platform must use reasonable means and reasonable efforts to revise its estimate of the age of the account holder. If the covered social media platform is able to conclude with ninety percent confidence that the account holder is over seventeen years of age, the covered social media platform may treat the account holder to be other than a child for purposes of this act. Otherwise, the covered social media platform must treat the account holder as a child for purposes of this act.

    (C) A covered social media platform shall update its estimate of the age of each account holder after every additional one hundred hours spent by the account holder on the platform, or as often as the covered social media platform applies any form of data analytics or artificial intelligence to update its estimate of any other demographic characteristic of the account holder for any reason, whichever period is shorter.

    (D) This section does not create any duty on the part of a covered social media platform to request, collect, or retain any information from or about any account holder. Rather, the age estimate required by this section must be derived based on information collected and retained by the covered social media platform in the ordinary course of operation of the social media platform.

    (E) A covered social media platform has no obligation under this article to estimate the age of an account holder who has had an account with the covered social media platform continuously for at least seven years or to take any action with respect to such account.

 

    Section 39-5-930.  (A)(1) A covered social media platform shall require applicants for an account to provide their birth dates as part of the account application process.

       (2) A covered social media platform may not create or maintain an account for a child or change the terms and conditions of an account for a child without first obtaining verifiable parental consent. Information collected for the purpose of obtaining verifiable parental consent may not be used for any purpose other than obtaining verifiable parental consent and must be deleted immediately after an attempt to obtain verifiable parental consent, except to the extent necessary to comply with any other applicable state or federal law or regulation.

    (B)(1) An account for a child must have all privacy settings set by default at the most private levels. A covered social media platform may not change the privacy settings of an account of a child without first obtaining verifiable parental consent for such change for as long as the account holder remains a child.

       (2) In the course of obtaining verifiable parental consent for the establishment or continuation of an account for a child, a covered social media platform shall prominently provide and explain an option for the parent to make such consent conditional on receipt by the parent of a separate password that enables the parent to:

           (a) monitor the amount of time the child spends using the covered social media platform;

           (b) set daily and weekly time limits on use of the covered social media platform; and

           (c) set limits on times of day when the covered social media platform can be accessed by the child.

    (C) A social media platform may not present addictive interface features in the display or feed of any child.

    (D) A social media platform may not present profile-based paid commercial advertising in the display or feed of any child.

 

    Section 39-5-940.  (A) A covered social media platform has a continuing obligation to terminate an account should it conclude or obtain information from which it reasonably should conclude pursuant to its obligations pursuant to Section 39-5-920 that the account holder is a child unless verifiable parental consent has been obtained for such account.

    (B) A covered social media platform shall terminate an account of a minor within no more than seven days after receipt of a request for termination from the account holder.

    (C) A covered social media platform shall terminate the account of a minor within no more than fourteen days after receipt of a request for termination from a parent of the minor. Upon receipt of such a request, the covered social media platform shall verify that the requesting party is a parent of the account holder by whatever means of verification the covered social media platform uses for purposes of ascertaining the validity of verifiable parental consent.

    (D) A covered social media platform shall provide clear, simple, and easy-to-locate means for the parent of any minor to request termination of any account of a minor.

 

    Section 39-5-950.  (A) If a covered social media platform makes a determination that it must terminate an account because the account holder has been classified as a child and verifiable parental consent has not been obtained, the covered social media platform shall notify the account holder of its intent to terminate the account within seven days of making that determination, and shall provide the reason therefor.

    (B) The covered social media platform shall provide thirty days from the date of the notice for the account holder to dispute the age classification and complete an age verification process or to provide verifiable parental consent.

    (C) If an account holder disputes his classification as a child, a covered social media platform may rely on any commercially reasonable age verification process to resolve the dispute.

    (D) A covered social media platform shall make a reasonable determination of such dispute within thirty days of the completion of the age verification.

    (E) In the event a covered social media platform concludes, after considering a dispute and the result of any age verification, that the covered social media platform is obligated to terminate an account, it shall terminate that account within seven days of making that determination.

 

    Section 39-5-960.  (A) This article does not limit the content a parent may show his children.

    (B) This article does not limit, beyond any limits imposed by other law, what results an online search engine may return in response to a query by a child.

 

    Section 39-5-970.  If a covered social media platform permits a child to open or continue an account on such platform in the absence of parental consent sufficient for the formation of a binding contract with a minor under ordinary principles of contract law under the laws of this State, then any purported contract pertaining to such account is invalid and unenforceable as contrary to public policy including, but not limited to, any arbitration provision, limitation of liability, or limitation of remedies, without regard to whether such social media platform had actual or constructive knowledge that the account holder was a child.

 

    Section 39-5-980.  (A) A child or parent has a private right of action for declaratory or injunctive relief, damages, including harm to mental health and emotional distress, court costs, and reasonable attorney's fees, and any other appropriate relief as a result of any negligent, reckless, or knowing violation of this article.

    (B) Where a covered social media platform's violation was reckless or knowing, a child or parent who prevails on a claim based on any violation of this article is entitled to recover the greater of ten thousand dollars in statutory damages or actual damages established at trial.

    (C) Where a covered social media platform's violation is part of a consistent pattern of reckless or knowing conduct, punitive damages may be awarded.

    (D) A covered social media platform may not be liable for any violation of this article if it has used reasonable means and reasonable efforts, taking into consideration available technology and the data in possession of the covered social media platform, to comply with the requirements of this act.

    (E) A civil action for damages for a violation of this article must be brought within three years of the date the plaintiff knew, or reasonably should have known, of the alleged violation. However, this limitation period for such action must be tolled during the minority of the plaintiff, pursuant to this article.

 

    Section 39-5-990.  (A) Any knowing or reckless violation of this article constitutes a violation of this chapter.

    (B) If the Attorney General has reasonable cause to believe that any covered social media platform has engaged in, is engaging in, or is about to engage in, any knowing or reckless violation of this article, the Attorney General may investigate and seek remedies as provided by law pursuant to this chapter.

 

    Section 39-5-1000. A waiver or limitation of any prohibition, limitation, requirement, or right to remedies established by this article, by any minor or parent, is unlawful, contrary to public policy, void ab initio, and of no effect, and no court or arbitrator may enforce or give effect to any such waiver, notwithstanding any contract or choice-of-law provision in a contract.

 

SECTION 3.  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 4.  This act takes effect upon approval by the Governor.

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