COPPA Compliance for Advertisers, Websites, Mobile Apps and Other Online Services

Whether you are an advertiser or online service provider, you must adapt to survive in an increasingly regulated and rapidly changing digital media environment. With an estimated 175,000 kids going online globally for the first time everyday, one of the key challenges your business may face is complying with a host of differing laws designed to protect the privacy of these young users—including the Children’s Online Privacy Protection Act (COPPA), which is specifically designed to protect children, and the California Consumer Privacy Act (CCPA) and European General Data Protection Regulation (GDPR), which contain provisions affording special protection to kids.

COPPA extends broadly to online services (advertisers, websites and mobile apps) whose audience includes children under 13, and prohibits them from collecting personal information (including persistent identifiers) from those users without first obtaining verifiable parental consent. While COPPA has been around for nearly 20 years, the Federal Trade Commission (FTC) has recently made COPPA compliance a key priority and stepped up the pace of COPPA enforcement actions. 

Among those impacted by the trend are YouTube creators, who face a new dilemma to start the New Year. If their content is “made for kids,” they must immediately label it as such. By doing so, they may lose the ability to monetize their content. By failing to do so, they may expose themselves to crippling fines. 

The Backstory

In September 2019, Google LLC and its subsidiary YouTube LLC agreed to pay $170 million to settle a civil action by the FTC and the New York Attorney General for alleged COPPA violations. YouTube allegedly violated COPPA by collecting cookies from viewers of child-directed channels, without first notifying parents and getting their consent, and then using those cookies to deliver targeted ads. 

In addition to paying a $136 million penalty to the FTC and $34 million to New York, YouTube has developed a new system for identifying child-directed content on its platform as part of the settlement. 

A New Year, A New Policy

Effective January 1, 2020, YouTube creators are responsible for determining whether their content is directed to children and then designating such content as “made for kids” as appropriate. That label may apply to individual videos (new and previously uploaded), or an entire channel. 

In turn, YouTube will no longer collect cookies to deliver targeted ads to viewers of “for kids” videos and channels. Instead, YouTube will deliver “contextualized ads” based strictly on the video’s content. YouTube will also disable comments, info screens, the “donate” button, channel branding watermarks, “save to playlist” or “watch later” features, and cards and end screens for “for kids” videos, and eliminate community tabs, notification bells and stories from “for kids” channels.

Again, if a video’s intended audience is 13 and under, the creator is subject to COPPA. 

Is It Child-Directed?

But, as YouTube and the FTC both acknowledge, the determination of whether content is “child-directed” may not be clear in many cases. In such cases, the FTC identifies a number of additional factors one must consider to make that determination, including:

  • The subject matter,
  • Visual content,
  • The use of animated characters or child-oriented activities and incentives,
  • The kind of music or other audio content,
  • The age of the models,
  • The presence of child celebrities or celebrities who appeal to children,
  • Language or other characteristics of the site,
  • Whether advertising that promotes or appears on the site is directed to children, and
  • Competent and reliable empirical evidence about the age of the audience.

Other Considerations

FTC also suggests that, unless a video is affirmatively targeting kids, there are many subject matter categories that do not implicate COPPA. For example, videos about traditionally adult activities like employment, finances, politics, home ownership, home improvement, or travel are probably not covered by COPPA unless the content is geared toward kids. The same would be true for videos aimed at high school or college students. On the other hand, if content includes traditional children’s pastimes or activities, it may be child-directed. For example, the FTC recently determined that an online dress-up game was child-directed.

Second, a video is not automatically covered by COPPA just because it has bright colors or animated characters. While many animated shows are directed to kids, the FTC recognizes that some animated programming appeals to everyone.

Where questions still remain, the FTC suggests considering how others view your content and content similar to yours. Has your channel been reviewed on sites that evaluate content for kids? Is your channel – or channels like yours – mentioned in blogs for parents of young children or in media articles about child-directed content? Have you surveyed your users or is there other empirical evidence about the age of your audience?

Conclusion

Okay. But what about channels built around gaming content like Minecraft and Fortnite? In such cases, application of the foregoing factors may still fail to offer a clear answer, and may provide little comfort to creators. Particularly when the Rule authorizes civil penalties of up to $42,530 per violation.

Website operators, mobile app services, and advertisers (both upstream and downstream) should be equally concerned about these questions.Indeed, digital services that classify themselves as general audience services are subject to increasing challenge by regulators to prove their audience composition.

If you are unsure about whether your content or your website is subject to COPPA, you should consult with an attorney experienced in FTC matters and COPPA compliance. We regularly review media, data collection practices, and privacy policies for compliance with COPPA, the CCPA, the GDPR and the FTC Act. 

Bradley O. Cebeci is a Senior Attorney with Rome & Associates, APC. Brad focuses on Payments Law and Digital Marketing.



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