Big Tech Regulation: The Battle moves to Florida

Allan Dunlavy 28 May 2021

The battle around Big Tech regulation has moved to the Sunshine State following the signing of new legislation by Florida Governor Ron DeSantis. The legislation allows for huge fines to be levied and legal action to be brought against Big Tech companies which seek to moderate user content and permanently shutter accounts.

Mr DeSantis believes that social media services such as Twitter, Facebook and YouTube are using their moderation and content rules to silence conservative commentators. This legislation comes in direct response to Big Tech companies removing a large amount of content and closing a significant number of accounts since the Capitol riots in January 2021; actions which Mr DeSantis believes skewed against conservative users.

Under the new law, due to take effect on July 1st, Floridian based users whose content has been removed or who have been banned can sue the social media company in Florida State Court. The available remedies include up to $100k in statutory damages, actual damages, punitive damages, injunctive relief and, in the case of permanent bans, costs and attorney fees.

In addition, social media companies can be fined up to $250,000 (c. £175,000) per day if accounts belonging to electoral candidates for statewide and local office are suspended for more than 14 days.

The legislation applies to Big Tech companies with more than $100m in annual revenue or more than 100m monthly users. It also requires these companies to publish the standards they use to moderate and ban users, apply the rules in a consistent manner and notify users of any changes to the rules.

In the event that a social media company decides to moderate or ban a user it is required to notify the user within 7 days and include a “thorough rationale” for the reason and a “precise and thorough explanation” of how the company became aware of the content (seemingly an attempt to remove anonymity for complainants).

The law focuses exclusively on the purported rights of users to publish whatever content they want, unimpeded by moderation or bans, and does not include any provisions to protect users from harassment, cyber bullying, discrimination and fake news. As such it conspicuously fails to address the real concern with social media and Big Tech – which is not that users are being stifled and over-moderated but rather that content is not being moderated enough and is being inconsistently moderated (across services due to different rules and application not between users within a service due to alleged bias) and users have too much latitude to harass, bully and discriminate against others.

Entirely predictably a legal challenge has been launched within days. Two Big Tech trade groups, NetChoice and the Computer and Communications Industry Association, sued in federal court on grounds that the law violates the Constitution. The lawsuit alleges that the Florida legislation infringes on the First Amendment rights of the social media companies (which are engaged as it is the State seeking to affect these rights) and is pre-empted by s.230 of the 1996 Communications Decency Act which prevents internet companies from being sued for how they choose to moderate, or not moderate, content.

Interestingly the lawsuit expressly acknowledges and accepts the editorial role of Big Tech companies in the content they publish in stating: “Rather than preventing what it calls ‘censorship,’ the Act does the exact opposite: it empowers government officials in Florida to police the protected editorial judgment of online businesses that the State disfavors and whose perceived political viewpoints it wishes to punish.”

It would appear that the fate of this legislation before the Courts is bleak as, generally, private company publishers – and that is what these social media companies are – can choose what they want to publish or not publish.

In any event, a number of other States, including Texas and North Carolina, are considering similar legislation and already this Court battle is flushing out Big Tech’s position on issues such as editorial control and their role as publishers. The debate about s230 and the regulation of Big Tech is only just getting started and will continue to rage in the US and around the world.