Freedom of expression prevails in Texas with the blocking of the SCOPE Act

Texas’ HB 18, also known as the Securing Children Online Through Parental Empowerment (SCOPE) Act, reignites the debate surrounding internet content regulation, child protection, and freedom of expression. Signed into law in 2023 and set to come into effect on 1st September 2024, it has now been blocked by a federal judge.

A new framework to limit digital content aimed at minors 

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argeted advertising towards minors and online pornography are just some of the issues that concern legislators in various regions. The attempt to curb the harmful effects of such content is driving the emergence of diverse regulatory frameworks specifically designed to address these challenges. 

The HB 18 Act, which is limited to the state of Texas, aims primarily to “protect” minors under the age of 18 from online content deemed harmful or inappropriate. The law imposes a range of requirements on web service platforms, particularly the most influential social networks, to ensure a safe online experience for young users. Some of the key provisions of the law include: 

• Prohibition of fraudulent listings: The law seeks to prevent online platforms from advertising products that are fraudulent, dangerous, or have been recalled. This means that platforms must ensure that the products they list do not pose a risk to consumers and that buyers are not misled by defective or hazardous items. 

• Increased accountability for online marketplaces: The law places stricter obligations on online marketplaces to monitor and remove listings that may endanger consumers. This broad definition of “danger” requires platforms to be more proactive in reviewing and removing certain products, including those that fail to comply with consumer regulations. 

• Transparency: The SCOPE Act may require platforms to provide clearer information about who the sellers are, and the origins of the products offered on their sites, helping to prevent fraud and issues related to product quality. 

• Compliance and penalties: Platforms that fail to meet the regulations set out by the law could face severe penalties, including hefty fines or other legal actions. 

SCOPE faces partial block  

However, federal judge Robert Pitman has suspended the “monitoring and filtering” requirements of the SCOPE Act, arguing that these provisions could pose a significant threat to freedom of expression online. This decision came after a lawsuit was filed by tech industry groups challenging the constitutionality of the law. The partial block is based on several key criticisms. 

Firstly, Judge Pitman criticised the vague or undefined terms within the law, such as “promotion”, “substance abuse”, or “grooming”, which can be interpreted broadly and subjectively. This could lead to arbitrary and restrictive enforcement, limiting freedom of expression rather than effectively protecting minors. 

Along these lines, Pitman also warned that applying the label of “grooming” could be misused to censor political content directly, negatively impacting public debate. 

He further pointed out that while social media platforms would be required to filter content, other media like books or publications on Google Books would not be subject to the same restrictions, creating a clear inconsistency in the regulation. 

Another major concern is that the law could be used to selectively control online content, which, in addition to being ineffective in protecting minors, could also negatively affect the quality and diversity of online discourse. 

As a result of these reasonable concerns, Pitman issued an injunction preventing the implementation of the “monitoring and filtering” measures. However, his ruling does not affect the entire law, meaning other provisions of SCOPE, such as those concerning data collection and age verification for sites with a large amount of adult content, remain in force. 

The partial block of Texas’ HB 18 reflects a common challenge faced by other legislation, such as the Kids Online Safety Act (KOSPA). Like HB 18, KOSPA aims to balance protecting minors in the digital environment with preserving fundamental rights. However, any attempt to legislate the free flow of content in digital spaces will face similar criticism for potentially imposing unequal or overly restrictive measures. This parallel highlights the inherent difficulty of designing legal frameworks that protect young internet users without infringing on basic rights or creating implementation gaps that could be exploited or misinterpreted.