I am a strong supporter of the First Amendment. However, when online speech involves minors, it seems like common sense that that there should be at least certain limited protections in place to shield children from some of the more abusive and unfair perils of the Internet. It appears that the state of California feels the same way.
On September 23, 2013, California Governor Jerry Brown signed Senate Bill 568 into law. The Erasure law is considered groundbreaking legislation, as it allows minors to require website and mobile application operators to remove content that a minor posted. Federal and state laws currently do not impose any sort of obligation to remove content from the Internet, even when it is posted by or involves a minor child.
The policy underlying the requirement is pretty common sense. It simply recognizes that kids 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 law also imposes stronger restrictions on the kinds of products that website operators can advertise and market to minors. Both requirements will go into effect on January 1, 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 may potentially lead some sites to block access to those under the age of 18 to avoid dealing with the removal requirements.
The Right to Erasure: What is the Erasure Law?
The requirement to remove content posted by minors applies to two types of web providers: (1) operators of websites, mobile applications, and other Internet service providers 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 its site and/or service.
Specifically, the 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” (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 its right to remove information 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 require operators to remove content posted or reposted to a website by other users and/or third parties. Further, 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.
The law also does not apply to posts that 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. Additionally, it does not apply to posts by a minor if the minor received compensation or other consideration for publishing the content.
What Does This All Mean?
This law will have a nationwide effect on most Internet service providers and website operators. In order to better comply with the law, operators will be quickly acting to implement procedures that will enable them to identify users who are minors and remove content upon request of such minors.
As a practical matter though, I think the Erasure law is an overdue recognition of badly needed exception to Internet speech. In my experience, when it comes to minors, most websites and Internet service providers already recognize this exception and even remove content posted anonymously or by third parties. It’s just the right thing to do, regardless of whether there is a legal obligation to do it. I would strongly suspect and hope that this law will encourage this policy to be more widespread and consistent throughout the Internet.
If you or your business have questions about removing content from the Internet that is posted by a minor, the Internet attorneys at Minc LLC can assist you.To schedule a free, no-obligation initial consultation call (216) 373-7706 or schedule a meeting online.