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Inside Privacy Updates on Developments in Global Privacy & Data Security from Covington & Burling LLP

CA Legislature Passes Bill Establishing Online Protections for Minors

Posted in Advertising & Marketing, Children's Privacy, Online, Social Media, State Legislatures, United States

Last Friday the California Senate unanimously passed legislation titled, “Privacy Rights for California Minors in the Digital World,” which prohibits certain types of marketing to minors (defined as a natural person under the age of 18 residing in California) and allows minors to delete materials they have posted online.  The bill, which already cleared the California Assembly, now has been sent to Governor Jerry Brown for approval.  If signed into law, the legislation would be effective beginning January 1, 2015. 

The bill, S.B. 365, which was introduced by Senator Darrell Steinberg, adds two new sections to the California Business & Professions Code.

Section 22580 would:

  • Prohibit an operator of a website, online service or application, or mobile application that is directed to minors from marketing or advertising on the service or application certain enumerated products or services that minors cannot otherwise legally purchase or use.  While some of these products and services may be obvious—e.g., alcohol, firearms, tobacco, and obscene materials—others—e.g., tanning and etching cream that is capable of defacing property—may be less so.  
  • Prohibit an operator of a website, online service or application, or mobile application from marketing or advertising the enumerated products or services where the operator has actual knowledge a minor is using its service or application, if the marketing or advertising is directed to that minor based on information specific to the minor such as profile, activity, address, or location, but excluding IP addresses and product identification numbers.  The operator shall be deemed in compliance with this provision if it takes reasonable actions in good faith designed to avoid marketing or advertising under these circumstances.
  • Prohibit an operator of a website, online service or application, or mobile application that is directed to minors or who has actual knowledge that a minor is using its service or application from knowingly using, disclosing, or compiling the personal information of a minor (or allowing a third party to do so) with actual knowledge that such activity is for purposes of marketing or advertising the enumerated products or services to that minor. 
  • These prohibitions do not apply, however, to the incidental placement of products or services embedded in content, if the content is not distributed by or at the direction of the operator primarily for the purposes of marketing and advertising the enumerated products or services.
  • Additionally, “marketing or advertising” is defined to require an “exchange for monetary compensation” in order “to make a communication to one or more individuals, or to arrange for the dissemination to the public of a communication, about a product or service the primary purpose of which is to encourage recipients of the communication to purchase or use the product or service.”  Thus, social media content or applications that only promote an enumerated product or service without paid placement would not fall within the scope of the bill. 

Section 22581 would require that, subject to certain exceptions, an operator of a website, online service or application, or mobile application directed to minors or an operator that has actual knowledge that a minor is using its service or application shall:

  • Permit a minor who is a registered user of the service to remove or, at the operator’s discretion, request and obtain removal, of content or information posted on the service or application by the user.
  • Provide notice to a minor who is a registered user of the service that such removal is possible and clear instructions for how to accomplish such removal.
  • Provide notice to such minors that this removal does not ensure complete or comprehensive removal of the content or information posted on the operator’s service or application by the user.
  • An operator shall be deemed compliant with this section if, despite making the original content posted by the minor invisible, it remains visible because a third party has copied the posting or reposted the content or information.