Internet Eraser Laws: California and Europe Attempt to Reign in Your Online Reputation

November 16, 2013 | by Emily Shoor

Have you ever posted a Facebook status that you later regretted? Or shamefully uploaded a photograph from a party only to wake up to many comments and “likes” from your friends on Facebook? If so, you may soon be able to demand the removal of this content from the Internet. California Governor Jerry Brown recently signed into law Senate Bill No. 568 (“SB 568”), also known as the “Internet Eraser Law.”1 SB 568 grants teenagers under the age of eighteen the ability to request that digital service providers remove their personal content from the Internet. Thus, effective January 1, 2015, to a certain extent teenagers in California can wipe away their tarnished digital reputations and get the benefit of a fresh start as adults.            

SB 568 is an addition to the Business and Professions Code, relating to the Internet. The law has two major components. First, it restricts “operator[s] of Internet Web sites[s], online service[s], online application[s], or mobile application[s]” (“Internet operators”) from marketing or advertising specified products or services on platforms that target minors under the age of eighteen.2 Second, it allows minors under the age of eighteen to request the removal of specified personal content that they previously posted on their own.  

This second aspect of SB 568 contains four requirements that apply to Internet operators who have “actual knowledge that a minor is using its” site, service, and/or application.3 The first requirement stipulates these operators must give a minor that is a registered user of the site, service, or application the option to remove or “request and obtain removal” of content they personally posted to the Internet operator’s platform. Next, the operator must provide notice to these minors of the option to request removal of the content. Third, the operator must provide “clear instructions” on the procedure to be followed to remove content. Finally, operators must notify the minor that removal is not necessarily “complete or comprehensive.” Despite these safeguards, SB 568 does not require the operator to permanently delete content upon removal. Additionally, SB 568 provides for a series of exceptions where an operator or third party is not required to erase or enable erasure of content. These exceptions include content that federal or state law requires the operator to maintain, content posted by a third party, content posted anonymously, and instances where the minor received “compensation or other consideration for providing the content.”

While SB 568 appears to resolve the growing concerns relating to the pervasive use of social media beginning at a very young age, the law is very narrow in its application. SB 568 only applies to minors, which can be interpreted to mean that the request for removal must be made while the individual is a minor. As noted in commentary in the media, this runs contrary to the intended purpose of the legislation, which is to give people respite from youthful indiscretion that may come back to haunt them later in their professional adult life. For example, a minor that is currently making poor decisions may not have the foresight to remove embarrassing personal content from the Internet before reaching the age of eighteen.  

Furthermore, SB 568 will almost certainly encounter First Amendment challenges. While the law limits removal to content posted exclusively by the individual, removal of the content could impact someone else’s freedom of expression. For example, many people comment on Facebook statuses and photographs. If the photograph is removed, what happens to the comment thread below the photo? Moreover, a U.S. federal appeals court recently held that Facebook “likes” are speech protected by the First Amendment, which could mean removal of a photo would violate the First Amendment protections granted to “liking” content. These are just a few issues raised by SB 568 that will need to be addressed in the coming year before the law becomes effective. 

           California is not the only governmental body attempting to give individuals more control over their Internet reputations. As my forthcoming Note4 in the Brooklyn Journal of International Law explains, the European Union is currently battling its own version of Internet erasure. The European Commission’s proposed regulation to overhaul the EU’s data privacy laws would give individual EU citizens the right to request the permanent deletion of personal content from the Internet by the company controlling the content. My Note argues that this “Right to Be Forgotten” is a logical modernization of Europe’s long-held traditions of protecting privacy. However, the current version of the EU regulation will likely result in regulatory overreach, is overly burdensome on private enterprise, and has the potential to result in a chilling effect on speech. In this manner, while the Right to Be Forgotten appears over-inclusive, SB 568 appears under-inclusive. The EU Right to Be Forgotten requires permanent deletion of content and imposes strict requirements on the third parties hosting the content. In contrast, SB 568 is very restricted in that it only applies to minors and is limited to requests by the individual who posted the content only in specific circumstances. 

           How these regulations will endure the controversial impact on freedom of expression and privacy remains to be seen, but California and the EU are moving in the right direction in addressing an important and growing concern for privacy as the Internet and social media infiltrate the personal lives of people of all ages. 

 

 Recommended citation: Emily Shoor, Internet Eraser Laws: California and Europe Attempt to Reign in Your Online Reputation, Brook. J. Int'l L., Practicum (Nov. 16, 2013),http://practicum.brooklaw.edu/articles/internet-eraser-laws-california-and-europe-attempt-reign-your-online-reputation. 

 Emily is a J.D. Candidate at Brooklyn Law School and an Executive Articles Editor on the Brooklyn Journal of International Law.