New California Regulation Regarding Minors Is Coming: Are You Ready? Part 1 – The “Eraser Button” Provisions
A new California statute, which originated as SB 568 and will be codified as § 22580 et seq. of the Cal. Bus. & Prof Code, takes effect January 1, 2015. Given the time it may take some sites, applications and online services to determine and implement appropriate compliance steps, now is the time to start considering the impact and preparing for the January 1 deadline. The law has two key provisions: one addressing a minor’s right to delete posted content (which has become known, affectionately or not, as the “Eraser Button Law”), which this post addresses, and one addressing online advertising in connection with minors, which will be the subject of a later post. Here are key points to note about this new regulation, which applies to minors (those younger than the age of 18):
- The Statute Applies Beyond The Web. The statute applies to websites, online services, online applications and mobile applications (“Online Services”). § 22581(a).
- The Statute Applies to Online Services That Target Minors. The statute applies if your Online Service – or a portion of your Online Service -- is directed to minors, which means that it is “created for the purpose of reaching an audience that is predominately comprised of minors, and is not intended for a more general audience comprised of adults.” § 22580(e)
- The Statute Applies to Online Services That Have Actual Knowledge Of Minors. If your Online Service is not directed to minors, you will still be subject to the law where you have actual knowledge that a registered user is a minor. § 22581(a). While it is unclear how broadly California will interpret “actual knowledge,” many Online Services will clearly have actual knowledge, given the tendency to collect age information. You may also have requisite knowledge if you allow users to sign-in using third party log-in credentials and that third party platform shares birth date or age information with you.
- The Statute Applies Only To The Owner Of The Online Service. By definition, the statute only applies to an “Operator,” which is the owner of an Online Service, and specifically does not include a third party host or an entity that “processes information on the owner’s behalf.” § 22580(f)
- The Statute Only Applies to California Minors. It is important to remember that only persons younger than the age of 18 who reside in the state of California have rights under the Eraser Button Law.
- The Statute Only Applies to Registered Users. Only registered users (and “registered users” is an undefined term), have rights to request removal of content. § 22580(d)
- The Statute Only Applies to Public Postings. The only content subject to the new regulation is content and information that is posted by the minor and can be accessed by at least one other user (whether that user is registered or not) of the Online Services. § 22581(f)
- The Statute Provides The Right To Delete Posted Content. If the Statute applies to your Online Service, the Eraser Button Law requires that the Online Service: * Permit the minor to remove (or request that the Operator or Online Service remove) any content or information that the he or she has posted on the site/service * Provide notice to the minor of the ability to remove content (or request its removal) * Provide clear instructions on how the minor can remove content; and provide notice that the removal of content “does not ensure complete or comprehensive removal of the content or information posted” by the minor registered user on the operator’s site/service. § 22581(a)(1)-(4)
- The Statute Allows For Removal Or Anonymization Rather Than Deletion. After receiving a request for removal, the operator does not need to actually delete all copies of the subject content. It is sufficient for the operator to render that content no longer visible to other users of Online Service and the general public. § 22581(d)(1). Alternatively, it is sufficient for the operator to anonymize the content so that the minor registered user is no longer individually identifiable. § 22581(b)(3).
- The Statute Only Applies to Content Posted by the User. The removal right only applies to content the minor posted. There is no obligation to remove (or allow for the removal of) content posted by a third party, including any content that was originally posted by the minor and has since been reposted by another. §§ 22581(b)(2) and 22581(d)(2).
- Only The Minor May Request Removal. Under this statute, there are no specific parental rights to request removal. Only the minor may remove or request removal of content the minor posted.
- The Statute Has A Few Exceptions. You do not need to remove content if: *You are required to maintain the content by another federal or state law (§22581(b)(1)); *The minor does not properly follow the instructions on how to have content removed (§ 22581(4)) *The minor received compensation or “other consideration” for providing the content (§ 22 581(b)(5)).