On 4 September 2019 the FTC fined Google $170m for its subsidiary YouTube’s failure to comply with the Children’s Online Privacy and Protection Act (“COPPA”). The failings related to YouTube collecting the personal information of viewers of child-directed channels without obtaining their parent’s consent, which is prohibited under COPPA.
In addition to the fine Google and YouTube have been directed to develop a system which allows channel owners to self-identify child-directed content on the YouTube platform. They released a statement following the fine here.
So why are content creators becoming so concerned around COPPA compliance? That’s because the Act “applies in the same way it would if the channel owner has its own website or app” (this is taken directly from the FTC press release). At the press conference it was confirmed that “COPPA prohibits the collection of personal information from children under the age of 13 without verifiable parental consent”.
The wording of COPPA confirms this position and will apply as follows to YouTube channels:
- As operators of an online service
In this case a YouTube channel which is run for commercial purposes, such as running monetized videos, may constitute a “website or online service”.
- Directed to children
This is assessed broadly as whether your audience is intended to be children under 13. To be directed to children a videos subject matter, visual content, animated characters, type of music or audio, age of models, celebrity presence, language and evidence of viewership is considered. This is going to require a fact sensitive case-by-case assessment.
- That collects personal information
Personal information includes the child’s name, address and contact information. This can be collected via cookies or comments.
If you meet the three requirements above you MUST comply with COPPA by having a privacy policy in place, posting a notice of data collection practices and obtaining parent’s consent to the collection of their child’s personal information. Failure to comply with COPPA leaves content creators liable for fines of up to $42,530 per violation.
Some scenarios help flesh out these problems. Suppose you create videos such as KidsReact or Pokemon oriented videos? Such content is highly likely to be considered as directed at children. If you run a competition on the channel or run ad analytics using cookies you will be collecting personal information. Thus you fall afoul of COPPA.
The result is the requirement to comply with wholly impractical measures from what has been criticised as an outdated piece of legislation. Obtaining parental consent for every viewer under the age of 13 is difficult to practically comply with. In this vein the FTC is running a consultation on the adequacy of COPPA, which closes 9 December 2019 (if this impacts you I highly recommend you comment!).
YouTube has taken steps to prompt users to self-identify content. I recommend you follow these accurately. It maybe you wish to change the style or nature of your videos and amend them to ensure compliance. At this stage I am aware that what designates content as “being made for children” is considered very broad. Things like language used, animation or style will be considered. Therefore, I highly recommend you take further advice if you are concerned about your Channel’s compliance.
If you are concerned your content falls under COPPA I recommend you:
- Apply the criteria to your content and consider if COPPA applies;
- Consider the FTC (conference, here and here) and YouTube’s guidance;
- Review your content at a channel or video level, marking it appropriately; and
- Take legal advice from a specialist in COPPA matters.
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