On September 23, 2013, Governor Jerry Brown signed a new piece of legislation aimed at the online protection of minors. Designated Senate Bill 568, the new law received publicity for giving minors an “Internet eraser,” requiring online services to provide a mechanism by which minors can remove their own social media and other online content. This mechanism is intended to give minors the ability to remove content that they later regret posting. Less well known is the fact that the law also restricts online advertising to minors of certain adult products such as alcohol, tobacco, firearms, tattoos, lottery tickets, dietary supplements, and tanning. For a copy of SB 568, click here.
The new law covers operators of web sites, online services, online applications, and mobile applications. Note the express inclusion of mobile applications. SB 568’s mention of mobile applications is in contrast to California’s Online Privacy Protection Act (OPPA) of 2003. OPPA requires commercial websites or online services that obtain personally identifiable information about California consumers to post their privacy policies. OPPA does not expressly mention mobile applications. Consequently, mobile applications that do not involve the communication between the mobile device and an operator’s services via the mobile Internet arguably are not covered, although California’s Attorney General has taken the position that mobile applications are covered.
In any case, operators covered by SB 568 must provide each minor that is a registered user of their services a mechanism to remove content or information posted by that minor. This portion of the law is the “Internet eraser” right referred to in news articles. The removal mechanism may either be a means for the minor to effect the removal herself. It may also involve the minor requesting that the operator remove the content. In addition, the operator must also give minors a notice of this new right, instructions on how the removal will occur, and a warning that removal does not “ensure complete or comprehensive removal of the content or information.”
SB 568 does contain a number of exceptions. First, the law does not apply where other federal or state law requires maintenance of the content or information. Second, the law does not apply to content or information posted by someone other than the minor, including content stored, republished, reposted by a third party. Thus, if a minor posts a picture on her social media page, and a friend shares the picture on his page, the service must facilitate removal of the picture from the minor’s social media page, but has no obligation to remove the picture from the friend’s page. Finally, SB 568 does not require removal when the content is anonymized, when the minor received compensation or other consideration for the content, and when the minor fails to follow instructions for proper removal.
The other portion of SB 568 bars covered operators from marketing alcohol, tobacco, firearms, and other adult products mentioned above, either by themselves or via a third party advertising company. The law does not require an operator to collect or retain age information about users. Operators will be deemed in compliance if they take reasonable actions in good faith to avoid marketing the covered products to minors. The law focuses on whether the operator has actual knowledge that users are minors. Thus, an operator’s unknowing and good faith, but negligent, use of advertising that reaches minors will not trigger liability under SB 568.
Where the operator uses an advertising company, it is deemed in compliance if it notifies the advertising company that its service is directed to minors. Once the advertising company is notified that the service is directed to minors, it must avoid advertising the covered products to minors. The law contains a carve-out for the “incidental placement” of products or services “embedded in content” if the operator did not distribute or direct the distribution of the content for marketing or advertising purposes.
Operators of web sites, online services, online applications, and mobile applications should begin examining their privacy and advertising practices to facilitate an “Internet eraser” mechanism, develop a privacy notice directed to minors about the new mechanism, and ensure they are not directing advertising of covered adult products to minors. SB 568 becomes effective on January 1, 2015. Thus, covered operators will have over a year to establish mechanisms needed to comply with the new law.
Stephen S. Wu
Partner, Cooke Kobrick & Wu LLP