In the United States, there is little argument that California leads the way in passing new online privacy laws. On January 1, 2015, the state acted again by enacting the California Minor Eraser Law. It received surprisingly little fanfare, but still represents a fundamental change to the permanency of certain content online.
- Angry political posts ripping those who did/did not vote for a particular politician.
- Late night posts on Facebook to an ex after a long evening of imbibing adult beverages.
- Photos of what happens in Vegas that didn’t stay in Vegas.
The sharing nature of the web is such that it is the rare individual who doesn’t have something floating around online they regret posting. This regret can have practical implications, particularly considering employers now regularly hunt potential employers online as a standard part of background checks. That image of you chugging a beer bong with scantily clad coeds at the river? Yep, probably best your potential employer does not see that one.
By the way, even attorneys who should know better run into this problem. Yours truly once wrote a series of articles from 2000 to 2001 for an adult industry publisher that catered to webmasters and companies in various adult niches. The articles covered different legal topics ranging from cybersquatting to copyright infringement. Any PR is good PR, right? It never occurred to me that these articles might appear in the Google search results.
You can see where this is going.
Yes, my articles in porn industry magazines appeared throughout the top 20 search engine results for my name. Any potential client searching my name as part of their due diligence process was in for a surprise. My personal belief on sexual issues is the government should stay out of the bedroom, but I undoubtedly lost more than a few potential clients given these articles. [I’ll save you time – the article listings no longer appear in the search results.]
Isn’t there some way of getting content removed from an online property? Ultimately, online platforms have no duty to remove user-generated content with limited exceptions unless you live in Europe. The new California Minor Eraser Law may tread new ground in this area…at least for minors.
California Minor Eraser Law
As the name suggests, the California Minor Eraser Law allows minors to request the removal of any content they have uploaded to an online platform such as an app or website. The law is not an amendment to the California Online Privacy Protection Act as so many have suggested. It is a stand-alone bill. We’ll dive into the specifics in a few moments, but we need to cover the sheer lunacy of the law first.
Let me ask you a simple question. If you post a scathing remark on a forum as part of a debate and then delete it a week later, is that statement removed from the web entirely? It is not.
From caching systems to indexing robots and, yes, scrapers, the content will quickly be copied and can usually be found somewhere else be it the Way Back Machine or some other platform. One then must ask what is achieved by allowing minors to request the removal of content from a site when that content will still appear elsewhere on the web?
The lunacy of this law becomes clearer when one realizes the legislators who created the legislation were aware of this problem. How do we know this? Just read section 4 of the new law requiring the online operator to:
(4) Provide notice to a minor who is a registered user of the operator’s Internet Web site, online service, online application, or mobile application that the removal described under paragraph (1) does not ensure complete or comprehensive removal of the content or information posted on the operator’s Internet Web site, online service, online application, or mobile application by the registered user.
Mind you, the legislators in California are not known for their intellectual brilliance. This is the same group of politicians that passed a law prohibiting revenge porn, but excluded selfies. Selfies make up roughly 70 percent of all revenge porn cases!
The purpose of the California Eraser Law is essentially to give minors a fresh start. This online fresh start is the equivalent of sealing the criminal record of a minor when they become an adult. The question, of course, is what duties does the new law create for an online operator?
The first step is to determine the nature of your online platform. Is our target marketing minors under 18 or you are aware such minors use the platform? If so, the law applies to you. Actual knowledge also exists if a minor contacts you through the platform.
The next step of the analysis addresses registration. Specifically, the law only applies to situations where individuals register with your platform before uploading content. If no registration is required, then you have no duty to comply with the law. Keep in mind, however, that registering to leave comments on your blog posts qualifies as registration.
Assuming the law applies to your platforms, you must now comply with the legislation by providing notice indicating how individuals can remove content they have uploaded to the platform. This content includes images, videos, recordings and text. The notice can be a step-by-step process the person follows, or you can just ask them to contact you to request the removal. You must then remove the content in question.
Finally, you must notify the individual who sends in a request that the removal of the content does not ensure it cannot be found elsewhere on the web. As mentioned above, a strange law to say the least.
As much as I would encourage an online operator to challenge this law, the practical reality is compliance is so simple that it is easier to simply comply. Please contact me if you have any additional questions or comments.
Richard A. Chapo, Esq.