What is a ‘sale’ under CCPA?

Young girl selling buttons to a sailor, 1941 — State Library of Queensland — Description: Julie Christofis selling buttons to a sailor on the Greek Day of Indepedence, 1941. She wears traditional national dress.

Updated: Nov. 2019

A “sale” is a disclosure of personal information that:

(1) was not intentionally triggered by the consumer;

(2) is not operationally required (i.e. it is not disclosed for business purposes);

(3) constitutes commercial speech (i.e. it is disclosed for commercial purposes); and

(4) entails consideration being provided in exchange FOR the personal information.

The business bears the burden of proving that a disclosure is not a sale under the test above unless a safe harbor applies (if a safe harbor applies, the business needs to prove only compliance with the requirements identified in the safe harbor)

The concept of sale is central to CCPA. Most notably, CCPA provides consumers over 16 with the right to opt-out of data sales and requires express consent for any sell of data of consumers less than 16 years old. Business that sale data must provide specific disclosures, refrain from selling if the consumer opts-out (or they fail to obtain opt-in consent for data of minors under 16), and abstain from requesting an authorization to sale for 12 months. (See, Cal. Civ. Code Sec. 1798.120.) In addition, CCA prohibits dicrimnation against consumers that exercise their rights under the Act while allowing business to offer certain…