Court blocks important part of California’s online child safety law

(Reuters) – A federal appeals court on Friday left intact a key part of a preliminary injunction blocking a California law designed to protect children from online content that could harm them psychologically or physically.

The 9th U.S. Circuit Court of Appeals in San Francisco said NetChoice, a trade group for online businesses, would likely prove that the California Age-Appropriate Design Code Act violates members’ free speech rights under the First Amendment to the United States Constitution.

In California, companies were required to conduct “privacy impact assessments” about whether their online platforms could harm children, such as through videos promoting self-harm, and to take steps to mitigate risks before launching.

Companies were also required to estimate the age of underage users and configure privacy settings for them or otherwise provide high settings for everyone.

Civil fines could be up to $2,500 per child for each negligent violation or $7,500 per child for each willful violation.

NetChoice said the law would turn its 37 members – including Amazon.com, Google, Facebook parent company Meta Platforms and Elon Musk’s X (formerly Twitter) – into “mobile censors” of anything California deems harmful.

District Judge Milan Smith wrote for a three-judge panel that the first requirement was likely unconstitutional because there are less restrictive child protection options in California.

He said the government could better educate children and parents about the dangers of the internet, provide incentives for companies to filter or block content or rely on enforcement of its criminal laws.

“Requiring the forced creation and disclosure of highly subjective opinions about content-related dangers to children is not necessary to create a proactive environment in which companies, government and the public work to ensure children’s online safety,” Smith wrote.

The appeals court vacated the remainder of the preliminary injunction issued last September by U.S. District Judge Beth Labson Freeman in San Francisco and returned the case to her.

It said Freeman had failed to properly assess NetChoice’s other objections to the California law, including whether the law could stand without the unconstitutional parts.

The office of California Attorney General Rob Bonta, who defended the law, did not immediately respond to requests for comment.

Chris Marchese, director of the NetChoice Litigation Center, called Friday’s decision “a victory for free speech, online safety and California families.”

California modeled its law on a similar one in the United Kingdom. Governor Gavin Newsom signed the state law in September 2022. The law was set to take effect on July 1, 2024.

The case is NetChoice LLC v. Bonta, 9th U.S. Circuit Court of Appeals, No. 23-2969.

(Reporting by Jonathan Stempel in New York; Editing by Rod Nickel and Jonathan Oatis)