California’s Effort to Suppress the Publication of Age Data Violates the Structure-IMDb v. Becerra

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IMDb has a subscription service where subscribers can remove their age from their personal profiles (this feature was not an option in this case) and a free service where IMDb shows the age of an actor (compiled from unspecified sources), even if the actor deleted the age information on the subscription service.

In Hoang v. Amazon.com could not hold an actress IMDb responsible for disclosing her true age, although she claimed that this resulted in age discrimination against her. At the urging of the Screen Actors Guild, California passed a law to overturn the Hoang judgment. The law prohibits (1) "the publication of age information (upon request) in paid subscriber profiles hosted by a" commercial online entertainment service provider "and (2)" a provider to publish age information in public ". Companion website like IMDb.com, regardless of the source of information. “The IMDb has challenged the law for constitutional reasons. The ninth circuit was on the IMDb side.

The court says the law is content-based because it restricts a single category of language (age information). To avoid tight controls, the government claimed that the law deserves reduced controls because it:

  • commercial speech. “The facts here don't pose a narrow question. Public profiles on IMDb.com do not suggest a commercial transaction. The content is encyclopedic and not transactional.
  • illegal speech. "We don't find anything illegal about truthfully factually publishing a person's age and date of birth when this information was lawfully obtained." The court says that the illegal speech exception cannot be extended to "facial harmless speeches that a third party could use to facilitate their own illegal behavior."
  • Speech that implies private affairs. "Content-based restrictions on public speech that affect private topics" still trigger a strict test.

Since none of these exceptions apply, the court conducted a rigorous review. Of course, the law fails. The court recognizes the legislative aim of reducing age discrimination, but the legislature has not properly demonstrated that it has chosen the least restrictive means. The law is also not narrowly tailored because age information should only be suppressed in the IMDb, not in the other place where this information could be published. The court later added: "An unconstitutional law that could achieve positive social results is nonetheless unconstitutional."

While it has always been clear that the anti-IMDb law violates the first change, the court's discussion may have a wider impact on other data protection laws.

The court dealt with the interface First Amendment / data protection:

Although many state and federal laws “regulate the collection and disclosure of data” without implying the first change, such laws regulate the misuse of information by companies that receive this information from individuals through an exchange. Such restrictions differ significantly from AB 1687, which, according to its terms, prohibits the publication of information regardless of how it is obtained.

This is a confusing passage because three discrete phases in the life cycle of data coincide: (1) data collection, (2) data disclosure / publication, and (3) data misuse. The court is not fully aware of where IMDb gets its age data for the free service from. However, this passage implies that the data source can be important. If the data comes from other publicly available sources, it seems at least illogical to restrict the republication of IMDb also at the request of the person concerned. As a result, the CCPA likely had to exclude information in government records in order to comply with the constitution (which legislators had only specified last year).

The court also confusingly distinguishes the constitutionally permitted restrictions on credit bureaus that sell private consumer data:

The “speech” in question – the sale of data – was itself an inherent private exchange between private parties. In contrast, IMDb publishes the information on its website free of charge so that the public can review it. This fact alone gives the speech in question an inherently public character.

I don't understand this difference. The rating agency's data sales are probably more commercial than the publication of editorial content. However, the data in question never suggest a commercial transaction, so I'm not sure why the publisher's business model should influence the way the speech is given. Even if the speech is only published for a limited audience and not for a global internet audience, it still receives the same First Amendment protection, doesn't it?

I have considered the applicability of the opinion to the CCPA. In particular, the Anti-IMDb law provided for a mandatory right to delete truthful age data. Similarly, the CCPA offers a comprehensive right to erasure that can be used to obtain truthful published data. The ruling suggests that companies may be able to refuse some data removal requests because they restrict the company's speaking rights. Could this principle also support companies that refuse to opt-out of data sales (many of which are not cash-for-data sales) if these sales are a publication?

Case quote: IMDb.com Inc. v Becerra, 2020 WL 3396306 (9th June, 19th June 2020)

Other blog posts on IMDb:

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