WASHINGTON — The Federal Trade Commission is warning platforms that the agency will strongly enforce the notice-and-removal requirements of the TAKE IT DOWN Act, which go into effect next week on May 19.
In a letter to tech companies, FTC Chairman Andrew N. Ferguson stated, “We stand ready to monitor compliance, investigate violations, and enforce the Take It Down Act.”
Signed into law last year by President Trump, the TAKE IT DOWN Act (TIDA) requires platforms hosting user-generated content to establish a process enabling users to request removal of intimate content shared without their consent, including photos, videos, and artificially generated material. Covered platforms must provide clear and conspicuous notice about the removal process and must take down nonconsensual images within 48 hours of receiving a valid request.
“The FTC will vigorously enforce TIDA,” the FTC stated in a compliance advisory, noting that violators may face civil penalties of $53,088 per violation.
Industry advocates and stakeholders, as well as civil liberties groups, have raised concerns about various elements of the law, with some speculating that the law invites abusive takedown requests.
Industry attorney Corey Silverstein told XBIZ that the 48-hour removal timeline is “extraordinarily aggressive” compared to most existing moderation systems.
“It creates a strong incentive for platforms to over-remove content rather than risk FTC scrutiny and substantial civil penalties,” Silverstein said. “For user-generated-content platforms, cam sites, clip-sharing services, and messaging-based services, the message from regulators is clear: Compliance is expected immediately, and hesitation could become very expensive.”
In an article for XBIZ last year, industry attorney Lawrence Walters wrote that compliance could pose an “insurmountable burden” for some platforms, especially those with limited staff. He also outlined other potential challenges.
“Since this would be a federal criminal law, Section 230 immunity would not apply, leaving platforms vulnerable to criminal liability,” Walters wrote. “Unlike the DMCA, on which this bill is seemingly patterned, there is no requirement that the statements in the takedown notice be sworn under the penalty of perjury, and no provision allowing for claims against those who abuse the takedown procedure. This invites abuse by frivolous claimants or even competitors.”
The Free Speech Coalition has warned that the law includes no provisions that address “how platforms can or should deal with erroneous or fraudulent removal requests.”
Responding to Ferguson’s warning, Silverstein cited the political context of the TAKE IT DOWN Act as an indicator of what platforms can anticipate.
“I expect aggressive and highly public enforcement,” he told XBIZ. “Particularly because the law passed with overwhelming bipartisan support and regulators will likely want early headline-making cases to demonstrate seriousness.”
Walters told XBIZ that he also expects aggressive enforcement.
"Covered platforms under the TAKE IT DOWN Act should quickly evaluate their compliance obligations before the deadline, if they have not done so already," he advised. "Minimal preparation can avoid an expensive civil investigation and potential fines."