So What is All the Fuss?
Recently, there have been many YouTube videos discussing the recent changes to the YouTube platform in regards to “content geared to children.” The fuss all started when YouTube and its parent company Google were hit with a lawsuit alleging that they have violated the Children Online Privacy Protection Act (COPPA). Specifically, the suit alleged that the companies were illegally collecting the personal information of children who were watching “child-directed” videos on the platform by collecting their user data without notice to or consent from the Parents. YouTube has taken this very seriously as YouTube agreed to pay $170 million for COPPA violations.
What is COPPA?
Paragraph 10 of 15 USC 6501 states that a website or online service directed to children is a website where all or a portion of the website is targeted to attract children (a person under the age of 13). This is an incredibly vague description. In an attempt to clarify if a channel is “directed to children,” the FTC has released an advisory that sheds more light on what content may be at risk.
The FTC states that a channel owner must look to the intended audience in determining what content might be protected by COPPA. Is that audience under 13? Let’s take a look at the factors that apply.
- The subject matter:
- If you are talking about the best way to file your taxes then you need not worry about COPPA as it is clear that your target audience is adults conducting adult activities. (Make sure that you are not doing this in a Barney Costume as that may be considered children directed.)
- If you are doing a show discussing the Marvel Cinematic Universe or reviewing comic books, it will depend on many of the factors below as the topic itself may or may not be actionable.
- visual content:
- Do you have children’s toys in the background? Are there children in the background? These are the factors that they will look at in determining the target audience.
- the use of animated characters or child-oriented activities and incentives:
- Did you have an artist draw the Teenage Mutant Ninja Turtles playing with hot-wheels and flossing? Probably going to be directed to children.
- the kind of music or other audio content:
- If you have kids’ songs, its most likely going to be geared for children.
- the age of models:
- The younger the model the more directed to children.
- the presence of child celebrities or celebrities who appeal to children:
- Justin Bieber in 2011? Again, most likely child directed.
- language or other characteristics of the site:
- If it looks like it was written for a children’s book it will set off red flags.
- whether advertising that promotes or appears on the site is directed to children, and:
- If there are children’s ads in the content.
- competent and reliable empirical evidence about the age of the audience:
- If you state that you are directing to children, or the vast majority of your audience are children.
The main takeaway is that the field and the regulation is full of uncertainty. The FTC and a court always look at the “totality of the circumstances.” Just as the phrase describes this means that they will look at everything and then make a decision. This means that although the intent of the channel owner will be taken into account, it truly DOES NOT MATTER WHAT YOUR INTENTIONS WERE IF IT LOOKS LIKE YOU WERE DIRECTING YOUR CONTENT TO CHILDREN. Additionally, this applies equally to all platforms, YouTube, Twitch, Mixr, etc.
How Does This Affect Your Content?
The FTC does go on to give examples of channel owners who were classified as directing to children. i-Dressup was a website where children were able to play dress-up games and decorate spaces. Although the website required parental consent for users under the age of 13, it still collected user data regardless of that consent. Given the intent to allow children onto the site, COPPA applied to i-Dressup.
It is very important that every content creator understand that if you post content to YouTube, COPPA WILL APPLY EQUALLY TO THAT CONTENT AS THOUGH THE OWNER WAS POSTING ON A WEBSITE THE OWNER CREATED. Unfortunately for channel owners, this means that all YouTube has to do is inform the owner of YouTube’s policy toward child-directed content and liability will then fall solely on the owner. YouTube will simply take down the video if it violates their terms.
There are some harsh penalties associated with violating COPPA, as i-Dressup agreed to pay $35,000 in civil penalties. The current disturbance is a direct result of the suit filed against YouTube resulting in the $170M penalty. This is a record-setting settlement and as a result YouTube changed their policies and YouTube released a video to explain the policy changes as a result of the lawsuit. You must now
- Set your audience using Youtube’s system.
- YouTube has an algorithm that will determine the audience as well, but you still must set your audience.
- This can be at the channel level or video level.
- If your content is made for kids
- These videos will no longer have comment sections.
- The video won’t show personalized ads, lowering some channels’ revenue.
- The Stories, community tab, and notification bell will no longer be present.
- There will be no option to save and watch for later or save for playlist.
The Bottom Line!
If a channel violates COPPA, it opens itself to liability and possible civil penalties. The FTC is currently looking at the application of COPPA given the advancements in internet technology. As a content creator or consumer you can make your voice heard here. To be safe, the best bet is to take a look at your content with these factors in mind, and if you have any questions speak with a legal professional in the area. There may be avenues to combat the application of this rule in court and you can check out my guide to loot box regulation here, which could be a very similar Law.
This is a guide to a current issue in the content creation field and should not be substituted for legal advice from an experienced attorney in the field. The Post is for informational purposes only. No Attorney-Client relationship is created from the information in this post.
Keep an eye out for further posts at MC & J Blog!!
Sean Mendez-Catlin, Esq.
Managing Partner handling Digital Media and Entertainment Law