California’ Online Eraser Law and Other New Developments for 2015

/ January 4, 2015

California’ Online Eraser Law

and Other New Developments for 2015

HAPPY NEW YEAR!

The New Year is the date new laws go into effect in California and elsewhere.  The most prominent new law going into effect is SB 568 – more commonly  known as California’s Eraser Law that was passed in 2013.

Eraser HeadERASER LAW 101

  • The new law only applies to websites, online applications and mobile apps that are directed at minors (i.e., “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 that have a registered user that is a known minor.
  • If either apply you must afford any California minor the right to remove OR request to remove any content or information posted publicly on the website and you must provide notice to the minor and clear instructions as to how to effect removal.
  • The website operator has the option of anonymizing the minor’s content rather than removing it.
  • The statute does not extend to a minor’s content that is reposted by third parties.
  • The statute does not apply if the minor was compensated or received “other consideration” for his/her posts.
The law also prohibits marketing to the minor “based upon information specific to that minor, including, but not limited to, the minor’s profile, activity, address, or location sufficient to establish contact with a minor” or sharing the minor’s information with third party’s “for the purpose of marketing or advertising products or services to that minor” based upon information that the user is a minor.

The law is not without its critics and Professor Eric Goldman of Santa Clara’s High Tech Institute thinks the law is vulnerable to constitutional challenge, but it is unclear if any are forthcoming.

UPDATE TO CAL. DATA BREACH LAW

AB 1710 provides an update to California’s data breach notification law to require that any business providing an offer of identity theft preventing or mitigation services in connection with a breach must do so at no cost to the affect person for at least 12 months.

It also expands the scope of those required to implement to maintain reasonable security procedures and practices to protect personal information from unauthorized access from merely those who own or license personal information to those that own, license or maintain personal information of California residents.

MUGSHOT EXTORTION and REVENGE PORN

SB 1027 prohibits websites for charging to take down a mugshot photo.  California is one of 8 states to ban the practice which has been criticized as online extortion.

California has also expanded its revenge porn statute via SB 1255 to include “selfies” and AB 2643 which enables a revenge porn victim to sue to have the images taken down and anonymously (as a Doe Plaintiff) after July 1, 2015.

STUDENT ONLINE PERSONAL INFORMATION PROTECTION ACT

SB 1177, the Student Online Personal Information Protection Act, prohibits online education service providers for grades K-12 from

  • Engaging in targeted advertising based on any information the operator acquired through usage of its online service;
  • Using data generated or collected to create student profiles for non-educational purposes;
  • Selling a student’s information; and
  • Disclosing student information unless otherwise permitted.

JUSTICE DEPARTMENT DELAYS REGULATIONS ON APPLYING ADA TO WEBSITES

The U.S. Department of Justice will offer rules in March 2015 clarifying its position that the Americans with Disabilities Act extends to public websites and can require certain accommodations for the blind.  In 2008, the National Federation for the Blind won a landmark settlement of a class action suit against Target in which target agreed to make changes to its websites so it was more accessible to the visually impaired.

Since then the Justice Department has entered into settlements with  H&R Block and online grocery service Peapod and intervened in private litigation on behalf of a plaintiff who sued clothing store Lucky Brand for failing to provide blind-accessible point-of-sale devices at its stores.

BITCOIN IS LEGAL TENDER

AB 129 repeals California’s ban on virtual currencies, making Bitcoin legal tender in California.

KLEARGEAR LAW

In 2008, Utah residents John Palmer tried to buy an item on the novelty-gift site KlearGear.com.  Mr. Palmer said he did not get what he ordered and canceled the transaction.  Ms. Kulas, Mr. Palmer’s wife, reportedly then took to RipoffReport.com to complain about what she thought was KlearGear.com’s shoddy customer service.

The couple reportedly thought nothing more of their business dealing with the Web site until KlearGear.com sent a letter to Mr. Palmer in 2012 (four years later) demanding a unilaterally-determined $3,500 penalty, citing the RipoffReport.com post as a violation of a non-disparagement clause hidden deep within the company’s “terms of use” policy.   When Mr. Palmer and Ms. Kulas refused to pay, KlearGear.com then reported the couple’s “debt” to at least one credit-reporting agency.  Stunningly, for almost two years, they would run into trouble trying to secure loans.  According to recent reports, in October 2013, for instance, they were left without heat in their house for three weeks after they were denied credit to finance a new furnace, their attorney said.

When the couple fought back, what was initially a public relations disaster for KlearGear became a legal disaster since the non-disparagement provision was not added until AFTER Mr. Palmer’s transaction.  The couple won $306,750 in compensatory and punitive damages plus attorneys fees.

The Palmer’s saga, however, led to AB 2365 which provides that a “contract or proposed contract for the sale or lease of consumer goods or services may not include a provision waiving the consumer’s right to make any statement regarding the seller or lessor or its employees or agents, or concerning the goods or services.”

The committee report explained:

With the advent of adhesion contracts in consumer transactions on the Internet, most consumers purchasing goods and services reasonably skip ahead to “check the box” at the end of the often ten thousand word online document, otherwise known as “click-wrap contracts,” to complete the order.  What consumers understandably do not realize is that they are typically agreeing to terms that may be manifestly unfair – and in these cases, potentially muzzling of cherished constitutional values.  Yet California and federal law do not yet make clear that such so-called non-disparagement clauses in these consumer contracts are void and unenforceable.  This measure fills that consumer-protection gap.

poggi12ALSO OF NOTE

If you weren’t already aware, Canada’s spam law went into effect on July 1, 2014.

Other newly effective California laws include

  • making the California red-legged frog (which is a “threatened species”) the official state amphibian;
  • banning the state from displaying or selling copies of the Confederate battle flag (or objects marketed with it); and
  • permitting restaurant-goers to eat with man’s best friend on outdoor patios.

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