The California legislature has taken another step in the enormous task of protecting children in the digital world. And Governor Brown has endorsed its efforts. On September 23, 2013, Governor Brown signed California’s minor “eraser law,” which is the first of its kind in the country and will require web companies like Facebook, Twitter, and Google to scrub the online activity of users under 18, if the minors request it.
The new law, which is officially called “Privacy Rights for California Minors in the Digital World” will go into effect on January 1, 2015, under Business and Professions Code Sections 22580 through 22582. Enacted to address the privacy of children, the law requires website and mobile app operators to provide children with (1) the ability to remove or request removal of content that the child posted on the website or mobile app; (2) notice and clear instruction on how to do so; and (3) notice that such removal may not remove all traces of such posting. For the removal requirement, operators can comply by making the original content invisible to other users and/or the public, even if it remains on the operator’s servers or if a third party has copied the content and made it available elsewhere.
Operators may not have to comply with the removal requirement if: (1) federal or state law requires maintenance of the content or information; (2) the content was stored, posted or reposted by a third party other than the child (like a friend); (3) the operator make the content or information anonymous so the child cannot be identified; (4) the child received compensation or other consideration for providing the content; or (5) the child does not follow the instructions provided by the operator to request removal of content. In other words, there are lots of loopholes that will only be filled with the case law that results from law suits filed against operators by those seeking to protect children on-line.
The new law also places restrictions on advertising to children. It prohibits operators of websites and mobile apps from marketing or advertising certain products to children if the marketing or advertising is directed to the child based upon information specific to that child (e.g., profile, activity, address, location sufficient to establish contact, etc.). It also prohibits operators from using, disclosing or compiling personal information of a child, or allowing third parties to do so, with the actual knowledge that it will be used for marketing or advertising certain restricted products.
The restricted products include alcoholic beverages, handguns, ammunition, spray paint, tobacco products, fireworks, tanning services, dietary supplements, lottery tickets, tattoos, drug paraphernalia, obscene matter, and other products and services. Operators can comply by with these prohibitions by taking “reasonable actions in good faith” to avoid such marketing or advertising, or by notifying the adverting service that the website or mobile app is “directed to minors,” at which point the obligation to refrain from marketing to children shifts to the advertising service.
An operator must comply with the removal requirements if its website or mobile app is “directed to minors” – as opposed to general audiences – or if the operator has actual knowledge that a user is a child. Operators are not required to collect or maintain age information under the new law, so operators that do not collect this information and operate general audience websites or mobile applications may not be affected. It is not clear whether a portion of a general audience website that becomes “directed to minors” would require an operator’s compliance with the new law. While the law contemplates several circumstances in which an operator would not be required to comply with the removal requirements, this circumstance is not among them.
Finkel Law Group, with offices in San Francisco and Walnut Creek California, has worked with many companies that collect and retain personal consumer information and assisted them with privacy policies, security protocols, and notification and disclosure requirements imposed by federal and California law. We have the knowledge and experience to help your company navigate California’s new privacy laws enacted to protect children. When you need intelligent, insightful, conscientious and cost-effective legal counsel to assist you with how you protect and manage personal information collected from consumers, please contact us at (415) 252-9600, or info@finkellawgroup.com to speak with one of our attorneys about your matter.