SB 2398

This bill requires a covered platform to do all of the following:  Maintain a content moderation system that allows users to report material harmful to minors that is not properly marked or age-restricted.  Provide a clear and conspicuous reporting mechanism accessible from any page where user-generated content is displayed.  Acknowledge receipt of reports within 48 hours.  Review reported content and take appropriate action within seven business days of receiving a report, including removing the content; restricting access through age verification; properly marking the content; or providing a substantive explanation for why no action was warranted.  Maintain records of all reports received and actions taken for a period of three years from the date of receipt of such reports or such actions. As used in this bill, a "covered platform"" is a commercial online platform, website, or application that has 10 million or more monthly active users in the United States; explicitly permits, in its published terms of service or content policies, the posting or distribution of material harmful to minors; and does not restrict all users' ability to access such materi al through effective age verification methods. This bill requires t he reporting mechanism required to allow anonymous reporting; provide a unique tracking identifier for each report; allow users to check the status of their reports; and not require users to create an account to submit a report. REPORTING REQUIREMENTS This bill requires e ach covered platform to publish a transparency report every six months that includes the following :  The total number of reports received.  The number and percentage of reports resulting in content removal.  The number and percentage of reports resulting in age restriction.  The average response time for addressing reports.  The number of accounts or users subject to enforcement action for repeatedly posting unmarked material harmful to minors. This bill requires t he reports to be published on the covered platform's website in a location easily accessible to the public. Covered platforms must provide copies of transparency reports to the attorney general within 30 days of publication. PRIVATE CAUSE OF ACTION This bill a uthorize s a parent or legal guardian of a minor who accesses material harmful to minors on a covered platform to bring a civil action against that covered platform if the following occurs:  The material was not properly age-restricted or marked.  The parent or legal guardian, or any other person, had previously reported substantially similar unmarked material from the same user or account to the covered platform.  The covered platform failed to take appropriate action on the prior report within the timeframe required.  The covered platform's failure to act constitutes a pattern of systematic failure. In such an action, this bill authorizes the court to award (i) a ctual damages ; (ii) s tatutory damages of $5, 000 per violation, not to exceed $250, 000 per action ; (iii) r easonable court costs and attorney fees ; and injunctive relief. The action must be brought within two years of the date the minor accessed the material. Venue for the action is in the county where the plaintiff resides or in Davidson County. ENFORCEMENT BY THE ATTORNEY GENERAL This bill authorizes t he attorney general to investigate potential violations and to issue civil investigative demands to covered platforms to determine compliance. If the attorney general has reason to believe a covered platform has engaged in a pattern of systematic failure to comply, then the attorney general may do any of the following:  Seek injunctive relief requiring compliance.  Seek civil penalties of up to $10, 000 per day for each day of continued noncompliance after a court order requiring compliance.  Recover reasonable court costs and attorney fees. Before bringing an action, this bill requires the attorney general to provide written notice to the covered platform describing the alleged violations and providing 60 days to cure. Actions by the attorney general do not limit or preclude private causes of action. EXEMPTIONS AND LIMITATIONS ON LIABILITY This bill does not apply to any of the following:  Internet service providers.  Search engines.  Cloud storage providers.  Email services.  Direct messaging services that do not include public posting functionality.  News organizations.  Platforms operated by or on behalf of educational institutions.  Government websites. Further, this bill provides that a covered platform that implements and maintains systems and procedures reasonably designed to comply with this bill is not liable for either of the following:  Individual instances of user-posted material harmful to minors that are addressed within the timeframes required.  Content moderation decisions made in good faith, even if different moderation decisions might have been reasonable. This bill does not require covered platforms to proactively monitor or screen all user-generated content; create liability for hosting user-generated content that complies with the platform's marking and age-restriction policies; limit covered platforms' first amendment rights to establish their own content policies; or override protections provided by federal law, except as specifically provided in this bill."