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Tech & Sourcing @ Morgan Lewis

TECHNOLOGY, OUTSOURCING, AND COMMERCIAL TRANSACTIONS
NEWS FOR LAWYERS AND SOURCING PROFESSIONALS

Most website and mobile application operators are aware of the Children’s Online Privacy Protection Act (COPPA), but did you know that California has enacted additional data privacy protection measures for minors?

What Is California’s Online Eraser Law?

On January 1, 2015, California’s “Online Eraser” law took effect. The law requires the operator of an internet website, online service, online application, or mobile application (“Service”) to permit a minor who is a registered user of the operator’s Service to remove, or to request and obtain removal of, content or information that was posted on the operator’s Service by the minor. Unlike COPPA, which applies to personal information from and marketing to users under the age of 13, the Online Eraser law applies to users under the age of 18 who reside in California.

How Does the Online Eraser Law Affect You?

The law affects you if

  • you operate a Service directed to minors (defined as “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”); or
  • you operate a Service and have actual knowledge that a minor is using your Service. A business owner may have actual knowledge that a minor is using its Service if the user voluntarily discloses his or her age, or if the Service collects birthdates during registration, for promotions, or other purposes. (The law does not require operators to collect age information about users.)

How Can You Comply With the Law?

You can comply with California’s Online Eraser law by taking the following actions:

  • Permit minors who are registered users of your Service to request and obtain removal of content or information that they post on your Service.
  • Update your privacy policy to provide notice to minors who are registered users of your Service that they may remove, or request and obtain removal of, content or information that they post on your Service.
  • Provide clear instructions in your privacy policy on how minors who are registered users of your Service may remove or request and obtain the removal of content or information they post on your Service. It is often advisable to distinguish in your privacy policy between the rules that apply to children under age 13 under COPPA and those that apply to minors under age 18 under the Online Eraser law.
  • In your privacy policy, provide notice to minors who are registered users of your Service that any removal of posted content does not ensure complete or comprehensive removal of the content or information posted on your Service (e.g., the content is “invisible” to other users but remains on your servers in some form).

Exceptions to the Law

You are not required to erase or otherwise eliminate, or to enable erasure or elimination of, content or information in any of the following circumstances:

  • Other provisions of federal or state law require you or a third party to maintain the content or information.
  • The content or information was stored on or posted to your Service 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.
  • You anonymize the content or information posted by the minor such that the minor cannot be individually identified.
  • The minor does not follow the instructions provided on how he or she may request and obtain the removal of content or information posted on your Service.
  • The minor has received compensation or other consideration for providing the content.

You will be deemed compliant with the law if

  • you render the content or information posted by the minor registered user no longer visible to other users of the Service and the public, even if the content or information remains on your 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.