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California Requires Websites to Permit Children To Erase Postings to Protect Their Privacy and Restricts Permitted Advertising To Children

JK! LOL! I Did Not Mean to Post That – California Now Requires That Children Be Provided With a “Cyber Eraser”

By Angelina Bruno-Metzger

Of the new cyber laws signed by California Governor Jerry Brown, by far the most publicized and debated has been bill SB568, which provides minors with greater cyber privacy rights. There are two main components of this new law: (1) it requires website operators and mobile application owners to allow minors to remove their postings, and (2) it places stronger restrictions on the type of products website operators can market and advertise to minors. The main sentiment and policy initiative behind this new law is clearly well-intentioned: to allow minors who are prone to posting rash and often emotionally charged content online without any awareness or concern of the future implications of that decision, to remove the harmful and offending content whether the regret comes five minutes later, or years later.

The first part of this law, the “internet eraser”, applies to two main categories of web providers; those that operate web sites, provide online services, or have mobile applications that are directed at minors and the second category applies to those same providers that have actual knowledge that a minor is using their site, services or mobile application. This eraser however, does not require the website operator to delete the information from its server. Instead, an operator will be deemed to have complied with this removal requirement by simply ensuring that the content is no longer visible to other users. As with many laws there are several notable exceptions, and this new internet eraser law is no different. In fact, there are multiple scenarios in which a web site operator is not under a removal obligation. Examples of these exceptions include: posts made anonymously by minors, as well as any content posted by a minor for which the minor received compensation (or other consideration) and only minors that are registered users of a site, service or application may seek to have their content removed.

The second part of this law involves the limitation of marketing and advertising of specified products to minors on websites and mobile devices. Predictably, those specified products include certain dietary supplements, permanent tattoos, alcohol, firearms, fireworks, lottery tickets and e-cigarettes. A website operator will be deemed to be in compliance with this new law if it has properly notified its advertising services that its site, service or application is directed towards minors. Essentially, if a company could not sell a product face-to-face to a minor, under this new law a company cannot solicit or sell that same product to a minor online.

This law will become effective on January 1, 2015, and already legal experts from around the country are debating whether or not this is a direct collision of privacy law and the First Amendment. Additionally, as with all cyber laws, there remains an enormous amount of ambiguity to address. For example, does the person need to be a minor when they request removal or can an adult retroactively ask for removal of a posting made while a minor? Will this law apply to all websites in the country or just to those based in California? As currently written, this new law does not included a time frame in which the operator needs to delete the requested content. Moreover, the scope of the content to be deleted remains unclear, and there is no penalty for an operator that does not comply with a request.

Stay tuned to see how the implementation and enforcement of this law plays out. For now, review our prior postings about the best ways to navigate the social media and the workplace, as well as understand the limitations of privacy on Facebook.