California has become the first state in the country to pass a law requiring operators ... or online services to give mi
OCTOBER 2013
ADVERTISING, MARKETING & PROMOTIONS
>> ALERT CALIFORNIA ADOPTS MINORS’ PRIVACY LAW California has become the first state in the country to pass a law requiring operators of commercial websites or online services to give minors the ability to remove their online content. The law, which takes effect on January 1, 2015, also imposes restrictions relating to the online marketing of certain products to minors. RIGHT TO ERASE Under the new law, an operator of an Internet website, online service, online application, or mobile application that is directed to minors or that has actual knowledge that a minor – defined as a person under 18 years of age who resides in California – is using its site, service, or application, must do all of the following: 1) Permit a minor who is a registered user to remove or, if the operator prefers, to request and obtain removal of, content or information posted by the minor. 2) Notify a minor who is a registered user of the service that he or she may remove or request and obtain removal of this content or information. 3) Provide “clear instructions” to a minor who is a registered user of the service on how the user may remove or request and obtain the removal of this content or information. 4) Notify a minor who is a registered user of the service that removal of content or information “does not ensure complete or comprehensive removal of the content or information.”
THE BOTTOM LINE California minors’ privacy law is not as extreme as the proposed European “right to be forgotten,” but it does impose significant new restrictions on certain service providers. Other states may now follow California’s lead, as similar bills are pending in other states. Affected service providers should (1) put in place procedures to comply with the deletion requirements, and (2) review their advertising practices and agreements with third parties for advertising content displayed to their users.
STATUTORY LIMITATIONS The new law does not mean that an operator has to become the “Internet cop” as there are limits on the obligations imposed by the law. The law provides that an operator or a third party is not required to erase or otherwise eliminate, or to enable erasure or elimination of, content or information in any of the following circumstances: 1) Any other provision of federal or state law requires the operator or third party to maintain the content or information. 2) The content or information was stored on or posted to the operator’s site, service, or application by a third party other than the minor, including any content or information posted by
the registered minor that was stored, republished, or reposted by the third party. This would include user-generated content. 3) The operator “anonymizes” the content or information so that the minor cannot be individually identified. 4) The minor does not follow the instructions on how to request and obtain the removal of content or information. 5) The minor has received compensation or other consideration for providing the content. The law also does not require an operator to collect age information about users. >> continues on next page
Attorney Advertising 1376
OCTOBER 2013
ADVERTISING, MARKETING & PROMOTIONS >> ALERT SAFE HARBORS FOR OPERATORS There are two safe harbors for the law’s “right to erase” provisions: 1) An operator is compliant with the law if it renders the content or information posted by the minor user no longer visible to other users of the service and the public even if the content or information remains on the operator’s servers in some form. 2) An operator is compliant if, despite making the original posting by the minor user invisible, it remains visible because a third party has copied the posting or reposted the content or information posted by the minor.
MARKETING RESTRICTIONS In addition to its “right to erase” provisions, the new California law contains new and significant restrictions on marketing and advertising certain products and services to minors. First, an operator of a site, service, or application that is directed to minors may not market or advertise a variety of products or services specifically identified in the law, ranging from alcoholic beverages, firearms, aerosol paint containers, and etching cream to
tobacco products, fireworks, tanning devices, dietary supplements containing ephedrine group alkaloids, permanent tattoos, and even lottery tickets. In addition, an operator may not market or advertise these products or services to a minor whom the operator has actual knowledge is using its site, service, or application if the marketing or advertising is specifically directed to that minor based on information specific to that minor. That information includes, but is not limited to, the minor’s profile, activity, address, or location sufficient to establish contact with a minor (but excludes the minor’s Internet Protocol address and product identification numbers for the operation of a service). However, an operator would not be in violation of the law if it takes “reasonable actions in good faith” designed to avoid the prohibited marketing or advertising. The law also provides that an operator of a site, service, or application directed to minors or who has actual knowledge that a minor is using its site, service, or application may not knowingly use, disclose, compile, or allow a third party to use, disclose, or compile the personal information of a
minor with actual knowledge that it is intended to be used for marketing or advertising of the restricted products or services to that minor. This could include third parties operating on a publisher’s site, such as ad networks or data partners. The incidental placement of products or services embedded in content does not violate these rules if the content is not distributed by or at the direction of the operator primarily for the purposes of marketing and advertising of restricted products or services.
FOR MORE INFORMATION Gary A. Kibel Partner 212.468.4918
[email protected] Allison Fitzpatrick Partner 212.468.4866
[email protected] or the D&G attorney with whom you have regular contact.
Davis & Gilbert LLP T: 212.468.4800 1740 Broadway, New York, NY 10019 www.dglaw.com © 2013 Davis & Gilbert LLP
