Senate Bill 396 to create the Social Media Safety Act was signed, on 13 April 2023, by the Arkansas Governor and will enter into effect on 1 September 2023. In particular, the Act establishes that a social media company must not permit an Arkansas user who is a minor to be an account holder on a social media platform, unless the minor has the express consent of a parent or legal guardian, noting that a social media company must verify the age of account holders. More specifically, the Act provides that reasonable age verification methods include:

• a digitised identification card, including a digital copy of a driver's license;
• government-issued identification; or
• any commercially reasonable age verification method.

Furthermore, the Act clarifies liability for social media companies. On this point, the Act provides that the Arkansas Attorney General may initiate an enforcement action against a social media company that allegedly commits a violation of the Act, with penalties of $2,500 per violation.

You can read the Act here and access its history here.

UPDATE (4 September 2023)

District Court issues preliminary injunction against Social Media Safety Act from going into force

The Western District Court of Arkansas, Fayetteville Division granted a preliminary injunction in its decision on 31 August 2023, in Case No. 5:23-CV-05105, NetChoice LLC v. Tim Griffin, in his official capacity as Attorney General of Arkansas against the Social Media Safety Act from coming into effect on 1 September 2023.

Background to the Decision

In particular, the District Court noted that NetChoice LLC claimed that:

• the Act violated the First Amendment Rights of adults and minors;
• the age-verification requirements in the Act did not provide a constitutional way to address the dangers to minors online; and
• the Act did not adequately define which social media companies or platforms would fall or be exempt from the purview of the Act.

Findings of the District Court

The District Court held that the Social Media Safety Act would likely unduly burden an adult's and a minor's access to constitutionally protected speech, under the First Amendment Right. In particular, the District Court noted that the enforcement of the Act would deter many adults from creating an account on social media platforms, who otherwise would be interested, due to the age verification requirements. The District Court further added that 'the governmental interest in protecting children does not justify an unnecessarily broad suppression of speech addressed to adults.'

Furthermore, the District Court noted that age-gating social media platforms for adults and minors does not appear to be an effective approach to address the harms of social media when in reality, it is the content on particular platforms that is causing the harm.

The District Court concluded that the Act was not narrowly tailored to target content harmful to minors and provided various exclusions to certain companies that would equally, in the Court's opinion, have shown harmful content to minors.

Outcomes

In light of the above, the District Court preliminarily enjoined the Act for coming into force on 1 September 2023, pending the final disposition of the issues on the merits.

You can read the decision here.