Expert Commentary

California Minors under Age 18: Privacy Requirements for Deleting Content/Information and Advertising/Marketing

Cal. S.B. 568 covers requirements involving an operator's Internet website, online service, online application, or mobile application regarding the removal of content or information posted by minor California residents under age 18 and marketing or advertising certain specified products and services to minor California residents under age 18.


Cyber and Privacy Risk and Insurance
September 2013

This law becomes effective on January 1, 2015. See Cal. S.B. 568.

Application

Cal. S.B. 568 applies to operators of an Internet website, online service, online application, or mobile application that is directed to minor California residents under age 18 or that has actual knowledge that a minor is using the Internet website, online service, online application, or mobile application.

An "operator" means any person or entity that owns an Internet website, online service, online application, or mobile application (excluding any third party that operates, hosts, or manages—but does not own—an Internet website, online service, online application, or mobile application on the owner's behalf or processes information on the owner's behalf).

"Internet website, online service, online application, or mobile application directed to minors" means an Internet website, online service, online application, or mobile application or a portion thereof that is created to reach an audience predominately composed of minors and is not intended for a more general audience composed of adults. However, an Internet website, online service, online application, or mobile application or a portion thereof is not deemed to be directed at minors solely because it refers or links to an Internet website, online service, online application, or mobile application directed to minors by using information location tools, including a directory, index, reference, pointer, or hypertext link.

Requirements Regarding Removal of Content or Information Posted by Minors

An operator of an Internet website, online service, online application, or mobile application that is directed to minors or that has actual knowledge that a minor is using its Internet website, online service, online application, or mobile application must do all of the following regarding a minor who is a registered user:

  1. Permit the user to remove or, if the operator prefers, to request and obtain removal of content or information posted on the operator's Internet website, online service, online application, or mobile application by the user.
  2. Provide notice to the user that he or she may remove or, if the operator prefers, request and obtain removal of such content or information posted by the user.
  3. Provide clear instructions to the user on how the user may remove or, if the operator prefers, request and obtain the removal of such content or information posted.
  4. Provide notice to the user that this removal does not ensure complete or comprehensive removal of such content or information posted.

"Posted" means content or information that can be accessed by a user (whether registered or not)—in addition to the minor who posted the content or information—of the Internet website, online service, online application, or mobile application where the content or information is posted.

An operator will be deemed compliant with these requirements if it renders the content or information posted by the minor user no longer visible to other users of the service and the public even if the content or information remains on the operator's servers in some form or, despite making the original posting by the minor user invisible, it remains visible because a third party has copied the posting or reposted the content or information posted by the minor.

Exceptions to These Requirements

An operator or a third party is not required to erase or otherwise eliminate or to enable erasure or elimination of content or information in any of the following circumstances:

  1. Any other federal or state law requires the operator or third party to maintain the content or information.
  2. The content or information was stored on or posted to the operator's Internet website, online service, online application, or mobile application by a third party other than the minor, who is a registered user, including any content or information posted by the registered user that was stored, republished, or reposted by the third party.
  3. The operator makes anonymous the content or information posted by the minor who is a registered user, so that the minor who is a registered user cannot be individually identified.
  4. The minor does not follow the above-mentioned instructions provided to the minor on how the registered user may request and obtain the removal of content or information posted on the operator's Internet website, online service, online application, or mobile application by the registered user.
  5. The minor has received compensation or other consideration for providing the content.

Also, these requirements are not to be construed to limit the authority of a law enforcement agency to obtain any content or information from an operator as authorized by law or pursuant to an order of a court of competent jurisdiction.

Marketing or Advertising Requirements

An operator of an Internet website, online service, online application, or mobile application directed to minors must not market or advertise the following products or services on its Internet website, online service, online application, or mobile application directed to minors (each a "specified product or service"):

  • Alcoholic beverages
  • Firearms or handguns
  • Ammunition or reloaded ammunition
  • Handgun safety certificates
  • Aerosol container of paint capable of defacing property
  • Etching cream capable of defacing property
  • Any tobacco, cigarette, or cigarette papers; blunt wraps; any other preparation of tobacco; any other instrument or paraphernalia that is designed for the smoking or ingestion of tobacco; products prepared from tobacco; or any controlled substance
  • BB device
  • Dangerous fireworks
  • Tanning in an ultraviolet tanning device
  • Dietary supplement products containing ephedrine group alkaloids
  • Tickets or shares in a lottery game
  • Salvia divinorum, salvinorin a, or any substance or material containing salvia divinorum or salvinorin a
  • Body branding
  • Permanent tattoo
  • Drug paraphernalia
  • Electronic cigarette
  • Obscene matter
  • A less lethal weapon

"Marketing or advertising" means, in exchange for monetary compensation, making a communication to one or more individuals or arranging for the dissemination to the public of a communication about a product or service for the primary purpose of encouraging recipients of the communication to purchase or use the product or service.

An operator of an Internet website, online service, online application, or mobile application directed to minors will be deemed to comply with these requirements if the operator notifies an advertising service that provides marketing or advertising, in the manner required by the advertising service, that the site, service, or application is directed to minors. If an advertising service is so notified, the advertising service must not market or advertise any specified product or service on the operator's Internet website, online service, online application, or mobile application.

An operator of an Internet website, online service, online application, or mobile application must not market or advertise any specified product or service to a minor who the operator has actual knowledge is using its Internet website, online service, online application, or mobile application and is a minor, if the marketing or advertising is specifically directed to that minor based on information specific to that minor, including without limitation the minor's profile, activity, address, or location sufficient to establish contact with a minor (excluding Internet protocol address and product identification numbers for the operation of a service). An operator of an Internet website, online service, online application, or mobile application will be deemed to comply with these requirements if the operator takes reasonable actions in good faith designed to avoid marketing or advertising under the prohibited circumstances.

An operator of an Internet website, online service, online application, or mobile application that is directed to minors or that has actual knowledge that a minor is using its Internet website, online service, online application, or mobile application must not knowingly use, disclose, compile, or allow a third party to use, disclose, or compile the personal information of a minor with actual knowledge that the use, disclosure, or compilation is for the purpose of marketing or advertising products or services to that minor for any specified product or service.

Exceptions to These Requirements

The marketing and advertising requirements will not apply 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 of any specified product or service.

Cal. S.B. 568 will not be construed to require an operator of an Internet website, online service, online application, or mobile application to collect or retain age information about users.


Opinions expressed in Expert Commentary articles are those of the author and are not necessarily held by the author's employer or IRMI. Expert Commentary articles and other IRMI Online content do not purport to provide legal, accounting, or other professional advice or opinion. If such advice is needed, consult with your attorney, accountant, or other qualified adviser.

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