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Online Speech & Minors: Should There Be Limitations?
At Minc Law, were strong supporters of the First Amendment. However, when online speech involves minors (persons under the age of 18 in the United States), it seems like common sense that there should be at minimum, certain limited protections in place to shield them from some of the darkest, more abusive, and unfair perils of the Internet. It also appears that the state of California feels the same way as we do.
On September 23rd, 2013, California Governor Jerry Brown signed Senate Bill 568 into law. Known as the ‘Erasure Law,’ California’s groundbreaking legislation enables minors to require website and mobile application operators to remove content posted by them (minors). As of 2013, federal and state laws did not impose any sort of obligation to remove content from the Internet, even when posted by or involving a minor.
So, what’s the policy underlying the requirement for websites and mobile application operators to remove content posted by minors?
The policy underlying such requirement is actually pretty common sense. It simply recognizes that minors (children) make mistakes and might say or post things on the Internet or social networking websites that should not continue to haunt them for the rest of their lives.
The California Erasure Law also imposes stronger restrictions on the kinds of products that website operators can advertise and market to minors, making it one of the most comprehensive pieces of legislation concerning children and the Internet to date. Both requirements ultimately went into effect on January 1st, 2015.
Although the law faced very limited opposition, several groups did raise concerns that the law could create a “chilling effect” on operators creating content for minors, and that it may have potentially lead to some sites blocking access to those under the age of 18 in order to avoid dealing with the removal requirements.
Online Defamation Law Fact: Confronting online defamers and malicious posters can be an arduous and difficult task, therefore we strongly recommend consulting an experienced defamation attorney in order to explore your options. Doing so will not only save you time, but hassle and future headache.
If you or your company are unsure about removing online content posted by minors and other persons, it’s important you reach out to an experienced Internet and defamation removal attorney. At Minc Law, we’ve secured the removal of over 25,000 pieces of online content and defamation, have litigated in over 19 states and 3 countries, and boast an nearly 100% online defamation removal rate.
As laws concerning minors in all states are still not entirely fleshed out or even clear, it’s strongly recommended you consult with an experienced professional. Our experienced and nationally recognized Internet and defamation lawyers know the ins and outs of free speech and U.S. defamation law, so rest assured you’re in good hands.
Let’s put an end to online abuse today!
The Right to Erasure: What is the Erasure Law?
Let’s take a look at the Right to Erasure and who it exactly applies to and its requirements.
The requirement set forth under California’s Erasure law – to remove content posted by minors – applies to two types of web providers: (1) operators of websites, mobile applications, and other Internet Service Providers (ISPs) that provide services and sites directed at minors; and (2) operators of websites, mobile applications, and other Internet Service Providers who have actual knowledge that a minor is using their site and/or service.
Specifically, California’s Erasure law requires that operators must:
- Permit minors who are registered users of a website or service to request and remove content or other information “posted” (we will tackle more on this later) by the minor;
- Provide clear instruction on how the minor may remove or request removal of the content; and
- Provide notice to the minor of their right to remove information they (the minor) posts.
As noted above, the Erasure law is somewhat limited because it has several exceptions, and does not require complete removal of content.
For example, the law does not actually require operators to remove content posted or reposted to a website by other users and/or third parties. Furthermore, the law does not require an operator to permanently delete content from its servers. Rather, the operator may comply with the law by taking steps to make sure that specific content at issue is no longer visible to other users of the site.
California’s Erasure law also does not apply to posts which are made anonymously.
For example, if a minor claims they posted certain information or content, and cannot prove or otherwise properly identify themselves as the author, then it is going to be an uphill battle to have the content removed.
Finally, it does not apply to posts by a minor, if the minor received compensation or other consideration for publishing the content. This opens up a slippery slope of content which may or may not be removed, and stands to jeopardize minors’ safety and personal information if they are unaware of such.
Online Libel Removal Tip: When confronting online defamation and libel, make sure to document everything, as it will help support your case. Also, we strongly recommend having a trusted friend or family member help you document all false posts and comments online, as it may help refute any claims by the opposing party that you manipulated or tampered with evidence.
What Does This All Mean?
Simply put, such law has a nationwide effect on most ISPs (Internet Service Providers) and website operators.
In order to better comply with the law, website operators and ISPs were required to act quickly in order to implement procedures to better enable them to identify users who are minors and remove such content upon request by minors.
As a practical matter though, we think that the Erasure Law is an overdue recognition of badly needed exceptions to Internet speech.
In our experience, when it comes to dealing with minors online, most websites and Internet Service Providers have already recognized this exception, and have even been willing to remove content posted anonymously and by third parties.
It’s just the right thing to do, regardless of whether there is a legal obligation to actually remove it. We would strongly suspect and hope that this law will continue to encourage this policy to be more widespread and consistent throughout the Internet.
U.S. Defamation Law Fact: In 2017 alone, there were over 57,000 tort cases filed with U.S. district courts. Keep in mind that defamation may also be referred to as the ‘tort of defamation’ and is classified as a civil wrong in the United States. Torts generally give way to monetary damages as compensation, and do not generally carry prison time like criminal actions.
California’s Erasure Law vs. EU’s Right to Be Forgotten
If you’re unfamiliar with the European Union’s landmark concept, which has been implemented and enforced since 2014, check out our comprehensive articles tackling its history and driving principles, whether it’s ever coming to the United States, and how it applies to online news.
Now that you’re familiar with the right to be forgotten and how it has drastically changed the online informational landscape and architecture, let’s take a look at several core similarities and differences between it and California’s Erasure law.
|California’s Erasure Law||The Right to Be Forgotten (RTBF)|
|Applies to California resident minors (persons under the age of 18).||Applies to persons of all ages – adults and minors.|
|Came into effect on January 1, 2015 and still in existence.||Came into effect (officially) on May 13, 2014 and still in existence.|
|Often referred to as “RTBF” Lite – meaning it is a “lighter” version of the EU’s Right to Be Forgotten. It may more aptly be seen as a minor’s personal “delete” button.||Considered to be the most comprehensive form of data and privacy guidelines in the world.|
|Only enables users to remove information and comments that they have posted themselves and does not apply to information posted by third parties.||Applies to information, videos, photographs, or any publicly available knowledge posted by both persons and third-parties.|
|Applies only to the original, and does not extend to copies which have been made.||Extends to copies or replications of personal data and information.|
As we can see, California’s Erasure law isn’t even the RTBF ‘Lite’, as its narrow scope still leaves countless vulnerabilities and hurdles for minors and other persons looking to remove online information and content.
We’re going to tackle a few more criticisms of California’s Erasure law in the next section…
California Defamation Law Fact: Statutes of limitations are legal limiting mechanisms, requiring a plaintiff to bring their claim within a specified period of time, or risk having it thrown out or dismissed. California’s defamation statute of limitations requires plaintiffs to bring their libel or slander claim within one (1) year of the cause of action. Some states differentiate between libel and slander statutes of limitations, so make sure to acquaint yourself with your state’s respective time-frames.
If you’re still unsure about the scope of California’s Erasure law and whether online information may be removable, we strongly suggest you reach out to an experienced defamation removal attorney today.
Criticisms of California’s Erasure Law: Should It Be Erased?
As noted above, California’s Erasure law is a step in the right direction towards protecting minors and their information online, however, it is still ripe with holes and issues.
Let’s take a look at three fundamental ambiguities plaguing California’s Erasure law:
- Who it’s directed at: A core issue plaguing California’s Erasure law is the lack of clarity surrounding when a website or mobile application is directed at a teen. There is a relatively sizeable gap and grey area between children (as defined under Children’s Online Privacy Act – COPPA) and adults, with teenagers caught in the middle, and often indistinguishable from an adult audience.
- Who can exercise their removal right: California’s Erasure law is restrictive and unclear of when a person may actually exercise their removal right. Must they exercise it while still a minor, or forfeit any chance of removing such information once they have crossed the threshold into adulthood? Oftentimes, minors are unaware of such rights and restrictions, and only later (after reaching adulthood) learn of such opportunity to remove particular information.
- Financial compensation: California minor’s may not exercise their removal right if they’ve received financial compensation or “other consideration.” Unfortunately, “other consideration” has not been defined or expanded upon in any manner, leaving minor’s possibly out of recourse in situations where a court or operator finds they have received such “consideration.”
While it’s tough to draft Internet legislation that is all-encompassing and meeting this ever-changing and complicated online environment, it appears California’s Erasure law (while a step in the right direction) still has a ways to go before becoming the comprehensive body of legislation it might first have appeared to be.
U.S. Libel Law Fact: Libel is defined as the written false assertion of fact which is communicated or published to a third-party, subsequently causing damage or injury to another person’s reputation, while slander is the spoken false assertion of fact communicated to a third-party. Make sure you understand the form in which the defamation is conveyed, as it may impact your rights and filing requirements significantly!
Work With the Internet Defamation Removal Lawyers of Minc Law Now!
If you or your business have questions or concerns about removing online content from the Internet which was posted by a minor, reach out to the Internet removal attorneys of Minc Law today!
At Minc Law, we know the ins and outs of online defamation and Internet law, and have worked tirelessly with numerous website administrators, content managers, and third-party arbitration firms in order to secure fast and permanent online removals. Rest assured when working with the defamation and Internet lawyers of Minc Law, you’re in good hands.
In our tenure as experienced defamation removal attorneys, we’ve secured the permanent and effective removal of over 25,000 pieces of online defamation, have litigated in over 19 states and 3 countries, and boast a nearly 100% online defamation removal rate. That’s right, we mean business.