Right to Remove Postings

The requirements for the so-called “Internet Eraser” have been added to Chapter 22.1 (Privacy Rights for California Minors in the Digital World) of the California Business and Professions Code, and apply to two types of web providers: the operators of Internet Web sites, online services, online applications and mobile applications directed at minors (individuals under the age of eighteen who reside in California) and the operators of Internet Web sites, online services, online applications and mobile applications who have actual knowledge that a minor is using its site, service and/or application.

To comply with the new law, these operators must implement four requirements:

1. The operator must permit minors who are registered users of the site, service or application to remove content or information the minor posted to the site, service or application, or in the alternative, the operator can permit the minor to request and obtain removal. Notably, the minor’s right to remove information is limited to the content and information the minor posts himself or herself – it does not apply to information posted by a third party or “re-posts” by a third party of information originally posted by the minor;
2. The operator must provide notice to the minor of its right to remove (or request and obtain removal) of information he or she posts;
3. The operator must provide clear instructions on how to remove or request removal of the content; and
4. The operator must provide notice to the minor that the removal of content does not ensure complete removal of the content from the Web site.

Removal of the minor’s information does not require the operator to completely delete the information from its servers. Rather, an operator will be deemed to have removed the content if the content is no longer visible to other users of the site, service or application.

There are several exceptions to the new requirement, including that the right of removal does not apply to posts by a minor that are anonymous (i.e., the minor who posted the information cannot be individually identified) and to posts by a minor if the minor received compensation or other consideration for providing the content. The law also appears to be limited to the posts of minors who are registered users of the site, service or application.

In addition to implementing a mechanism to permit a minor to remove or request removal by the operator, the notice requirements set forth in the new law likely require site, service and application operators to modify their Terms of Use before January 1, 2015.

Limitations on Marketing to Minors

The new law also implements restrictions on marketing and advertising to minors via Web sites and mobile platforms. Beginning on January 1, 2015, the operators of Web sites, online services, online applications and mobile applications with actual knowledge that a minor is using the site, service or application may not knowingly use, disclose or compile, or allow a third party to use, disclose or compile the personal information of a minor for the purpose of marketing or advertising specified products and services to minors, including certain types of dietary supplements, e-cigarettes, tattoos, alcohol, and fireworks. Additionally, operators of site, services or applications directed at minors are prohibited from advertising the same group of prohibited products and services.

Operators will be deemed in compliance if they notify their advertising services that the operator’s site, service or application is directed to minors. The law also makes the prohibition on the marketing and advertising to minors of the prohibited products and services applicable to advertising services that have been notified by an operator of a site, service or application that the operator’s site, service or application is directed to minors.

A full copy of Senate Bill No. 568 is available at: http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201320140SB568