APPEALS COURT STRIKES DOWN CHILD ONLINE PRIVACY LAW

Says Broadly Written Protections Violated First Amendment

By Published on .

WASHINGTON (AdAge.com) -- A U.S. appeals court today struck down the Child Online Privacy Act for placing "at risk" constitutionally protected speech.

Broadly drawn language
The three judge appellate court said the legislation had been drawn so broadly in using terms such as "minor" and "harmful" as to endanger many online sites to prosecution. The court specifically rejected as unconstitutional the child-targeted defenses sometimes used to justify potential curbs on tobacco and liquor ads.

The Child Online Privacy Act bars companies from using the Web to engage in "any communication for commercial purposes ... available to any minor ... that is harmful to minors." The law would have allowed for penalties of up to $150,000 a day per violation and up to six months in prison.

The court said that "[the law]

Related Stories:
HAS CHILDREN'S PRIVACY LAW GONE TOO FAR?
will likely deter many adults from accessing restricted content," and that it "impermissibly places at risk a wide spectrum of speech that is constitutionally protected."

Ad, media group support
Advertising and media groups had filed a friend of the court brief in the case.

The panel had rejected an earlier version of the law, the Children's Online Privacy Protection Act, and this was the second time it was considering the Child Online Privacy Act after the Supreme Court rejected the panel's view that the new law's use of "community standards" alone made the law unconstitutional.

This time the panel used First Amendment arguments, saying law wasn't narrowly enough tailored. While the law was aimed at content of "prurient interest" to minors and lacking "serious ... value for minors," the court said it had the effect of preventing adults from seeing the same content.

'Harmful to minor'
The law also failed to adequately examine the context of a Web page; to adequately distinguish "commercial purposes" in a way that could treat differently a small nonprofit that used an ad to defer costs and far more commercial hard-core sites; and failed to fully explain what "harmful to a minor" meant when minors can be defined as anytone between an infant and 17 years old.

The American Civil Liberties Union, which had challenged the law, today praised the decision.

"It's clear that the law would make it a crime to communicate a whole range of information to adults," said Ann Beeson, associate legal director of the ACLU.

In this article:
Most Popular