California Protects Minors from the Internet by Imposing Restrictions on Online Marketing or Advertising of Products Minors Cannot Legally Purchase

by Wilson Elser
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Operators of Internet websites and online services, online applications or mobile applications (online media) will be prohibited from targeting minors with advertisements for goods that a minor cannot legally purchase and services in which a minor cannot legally engage. The new restrictions are set forth in Senate Bill 568 (as amended), which takes effect as of January 1, 2015, as Business and Professions Code Section 22580 et seq.

State Bill More Protective than Federal Law
In addition, the bill gives minors the opportunity, subject to certain exceptions, to remove information that they have posted or stored on online media. An operator can comply with this “removal” request by hiding the posting so that no other users can see or access it, or by otherwise making the posting anonymous; however, the operator is not required to erase or eliminate content if any other provision of federal or state law requires the operator to maintain the information, or if the content was submitted by a third party. These limitations ensure compliance with other laws and protect the speech rights of third parties who may use a statement by a minor in the context of their own speech (for example, a user on Twitter who “retweets” a minor’s “tweet” with their own commentary).

Specifically, SB 568:

  • Prohibits an operator of online media from marketing or advertising a product or service to a minor if the minor cannot legally purchase the product or participate in the service in the State of California
  • Prohibits an operator from using, disclosing or compiling, or allowing a third party to knowingly use, disclose or compile, the personal information of a minor for the purpose of marketing goods or services that minors cannot legally purchase or engage in within the State of California
  • Requires an operator of online media to permit a minor to remove content or information submitted to or posted on the operator’s online media by the minor, unless the content or information was submitted or posted by a third party or unless any other provision or state or federal law requires the operator or third party to maintain the content or information
  • Requires an operator to provide notice to a minor that the minor may remove the content or information.

State law generally does not prohibit the kind of information that online media can collect and share; rather, it only requires very general disclosure of those policies. A user’s right to opt out of data collection and sharing, to block advertising or to remove content is generally dictated by the operator’s unilateral “terms and conditions.” Federal law requires the operator of a service directed to children under the age of 13 to give notice of the kinds of information that is collected and how it is used, and it gives parents the opportunity to opt out of future collection of their child’s information. The state bill is more protective than federal law because it defines a “minor” as a natural person residing in the state who is less than 18 years of age.

Clarity an Issue
While this new law was enacted for the purpose of protecting the privacy rights of children and teens in California, detractors of the law contend that it will leave operators of online media that are popular with young adults uncertain of their obligations under the law.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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