Can a state law prevent a social media site from publicly posting accurate age information about individuals in the entertainment industry—even if that information is posted by users? The California legislature and Governor believed it was permissible, and the legislation went onto effect on September 24, 2016 (Cal. AB 1687, adding Cal. Civ. § 1798.83.5). Five months later, a federal judge temporarily enjoined the government from enforcing that law, in IMDb.com Inc. v. Becerra, No. 16-cv-06535-VC (N.D. Cal. Feb. 22, 2017).
The California law prohibits a “commercial online entertainment employment service provider” that has entered into a subscription agreement with a subscriber for employment services, from publishing or sharing with websites for the purpose of publishing, the subscriber’s date of birth or age. The law does not automatically prohibit publication of the information, but only upon request of the subscriber.
A “commercial online entertainment employment service provider” is defined as “a person or business that owns, licenses, or otherwise possesses computerized information, including, but not limited to age and date of birth information, about individuals employed in the entertainment industry, including television, films, and video games, and that makes the information available to the public or potential employers.”
The law further states that websites—such a social media sites and blogs–that permit users to upload information without the website provider’s prior review would not be in violation of the law. But the law has an exception: if the subscriber first requested the provider to remove age information.
The stated purpose of the law is to ensure that information on a website regarding an individual’s age not be used in furtherance of employment or age discrimination.
Movie and television fans are probably familiar with the website IMDb.com, which provides information on movies and television shows, as well as information on the actors, including their birth dates. The site also permits users to post comments. User may not realize that the site also accepts subscriptions for actors, and enables interested persons to contact the actors or their agents for possible employment. In other words, IMDb.com appears to fall squarely within the California law, and it sued to enjoin enforcement in November of 2016.
By way of background, in 2011, an actress named Huong (“Junie”) Hoang sued IMDb in federal court in Seattle for publishing her birth date, which she claimed cost her employment because it revealed she was 42 years old. She sued for $1 million based on fraud, privacy, and consumer law grounds. The jury reportedly ruled for IMDb in 2013.
The 2017 court opinion
IMDb sued to enjoin enforcement of the California law, on the grounds that the law violated the First Amendment to the U.S. Constitution, as an impermissible restraint on commercial speech.
The court found that the government had identified a compelling goal of the law: preventing age discrimination in Hollywood. The court, however, found that the government did not show how the law was “necessary” to advance that goal. “In fact, it’s not clear how preventing one mere website from publishing age information could meaningfully combat discrimination at all.” In addition, the court pointed out that anti-discrimination laws already exist and could be enforced by the government. Therefore, the court ruled “there is an exceedingly strong likelihood that IMDb will prevail in this lawsuit.”
The court found that the law restricted IMDb’s First Amendment speech rights, which meant “by definition IMDb is suffering irreparable harm.” Finally, the court found that the hardship on IMDb of the absence of an injunction against the law was far greater than the hardship on the government if the injunction issued, and that injuries to the public interest were similarly in IMDb’s favor.
Note that the injunction is temporary: it will last only while the trial is pending. We will continue to monitor the progress of this case.