Is Your Website Ready for California’s “Minor Eraser” Law?

Starting on Jan. 1, 2015, California’s new “Minor Eraser” law goes into effect and allows minors in California to remove content or information that they have posted as a registered user on a website, online service, online application or mobile application (collectively, an “online service”). Does this new law apply to your website?  This new law will apply to online services in two instances - if your online service is directed to minors or if the operator has actual knowledge that a minor is using the online service.  This law defines “minor” as any person under 18 years old who resides in California. The statute defines “directed to minors” as an online service, or any part thereof, that 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” (emphasis added); however, an online service is not “directed to minors” solely because it refers or links to another online service that is directed to minors, see Cal. Bus. & Prof. Code §22580(e).  It is important to note that a portion of an online service can be directed to minors if it satisfies the above criteria, even if the other parts of the service are directed at a general audience of adults.  The statute does not provide any additional clarity on what it means to have a purpose of reaching an audience predominately of minors or how the operator’s subjective intent to reach a general audience of adults should be considered. An operator of an online service can also fall within the scope of this new law if they have actual knowledge that a minor is using their online service.  Whether an operator knows that a particular user is a minor will depend on the facts and circumstances.  However, an operator may become aware of a user’s age because the user voluntarily discloses this information to the operator or if the operator collects dates of birth for age screening, birthday related promotions or other purposes.  For example, an online service that age screens using the federal Children’s Online Privacy Protection Act (COPPA) standard of under 13 years old may find that, with respects to users in California, they now have actual knowledge that certain users are between 13 to 17 years old and, thus, would be covered by this law. Naturally, some online services will be excluded from this new law because they do not allow any users to post any content or information. Removal Right Any online service that falls within the scope of this law must allow a minor who is a “registered user” to remove any content or information they have posted to the online service.  Content or information is considered “posted” whenever it can be accessed by any user in addition to the minor that posted it and does not need to be accessible by the public at large.   In lieu of giving users the direct or automatic ability to remove their content, operators may establish a process where minors can make a request to have the operator remove the posted material.  Selecting this alternative process may be necessary for online services which do not currently have the technical ability to allow users to remove their own content.  The statute does not specify who is considered a “registered user” or whether this removal right continues to apply to material originally posted by a minor when the user is now 18 or older, or if the minor no longer resides in California. An operator is not required to erase or remove any content or information if: (1) any other provision of federal or state law requires the operator to maintain the content or information; (2) the content or information was stored on or posted to the online service by a third party other than the minor, including any content that is stored, republished or reposted by a third party; (3) the operator anonymizes the content or information so that the minor cannot be individually identified; (4) the minor does not follow the instructions (see Required Notices below) about how to request and remove posted material; or (5) the minor received compensation or other consideration for providing the content. An operator is deemed compliant with its removal obligation if the minor’s content or information is no longer visible to other users of the service and the public, even if the content or information remains on the operator’s services in some form.  The operator is also deemed complaint with the statute if despite making the original posting by the minor invisible, it remains visible because a third party copied or reposted the content. Required Notices In addition to facilitating the removal of posted content, covered operators also most notify any registered users who are minors of three things.  First, they must provide notice that minors in California may remove or, if applicable, request and obtain removal of content or information that they have posted to the online service.  Second, the online service must also provide clear instructions on how a registered user may remove or request removal of the posted content or information.  Finally, the operator must notify the applicable registered users that the removal of the content or information from the online service does not ensure complete or comprehensive removal of the content or information posted on the online service. If these required notices are not included directly in the online service’s privacy statement, it is recommended that the privacy statement include a link to where these disclosures are provided.