Content Changes Challenge YouTube Creators; FTC to the Rescue

Advertising Law

Changes to YouTube’s policy with regard to the labeling of videos with child-directed content have creators struggling to achieve compliance. Earlier this year, YouTube agreed to a record-setting deal with the Federal Trade Commission (FTC) and the New York State Office of the Attorney General, promising to pay a total of $170 million to settle charges of violations of the Children’s Online Privacy Protection Act (COPPA) as well as the FTC Act. In addition to the payout, the video platform was required to develop, implement and maintain a system for YouTube channel owners to designate whether their content is directed to children, as well as notify channel owners that their child-directed content may be subject to COPPA’s obligations.

However, the question of whether a video is “child-directed” isn’t always clear, as even YouTube acknowledged in an informational video about the policy changes. “Ultimately, we can’t provide legal advice,” YouTube said. “We’re unable to confirm whether or not your content is made for kids. That decision is up to you.”

The question is particularly challenging since the switch to a child-directed label comes with a host of restrictions for channels. They must terminate all targeted advertising, remove the comments section and delete the community tab—all changes that could result in a loss of income. Further, the failure to comply with the policy changes could result in an enforcement action against a channel operator. Since the settlement requires that YouTube need only establish and maintain the system, and provide updates, the responsibility for COPPA compliance rests on the shoulders of the channels.

In light of the difficulties that creators have in determining whether their YouTube videos are child-directed, the FTC published a blog post on Nov. 22 that provides some guidance for this potentially difficult child-directed analysis. The post titled “YouTube channel owners: Is your content directed to children?” identifies the factors the FTC will examine when making the determination of whether your content is child-directed.

The FTC’s blog post notes that content isn’t considered “directed to children” simply because some children may see it. However, if children under 13 years of age are the intended audience of the content you post online, COPPA applies and you must honor COPPA’s legal requirements.

The FTC’s post highlights the list of factors that the FTC will consider in determining whether your content is child-directed:

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

The FTC noted in its blog post that whether content is child-directed will be clearer in some contexts than in others. First, unless you’re affirmatively targeting kids, there are many subject matter categories where you don’t have to worry about COPPA. For example, if your videos are about traditionally adult activities such as employment, finances, politics, homeownership, home improvement or travel, COPPA likely does not apply unless your content is specifically geared toward kids. The same is true for videos aimed at high school or college students. On the other hand, if your 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, just because your video has bright colors or animated characters doesn’t mean COPPA automatically applies. While many animated shows are directed to kids, the FTC recognizes there can be animated programming that appeals to everyone.

Third, the complaint in the YouTube case offered some examples of channels the FTC considered to be child-directed. For example, many content creators explicitly stated in the “About” section of their YouTube channels that their intended audience was children under 13. Other channels made similar statements in communications with YouTube. In addition, many of the channels featured popular animated children’s programs or showed kids playing with toys or participating in other child-oriented activities. Some of the channel owners also enabled settings that made their content appear when users searched for the names of popular toys or animated characters.

Finally, if you’ve applied the factors listed in COPPA and still wonder if your content is “directed to children,” it might help to consider 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?

Once you have made the determination that your content is directed to children and you must comply with COPPA, the FTC also offers a handy FAQ that serves as a COPPA compliance guide for digital marketers and the lawyers who advise them.

Why it matters: Children’s privacy issues are lurking in many digital marketing campaigns, whether or not the campaign is directed to children. In 2013, the FTC updated COPPA, which, generally speaking, requires a company to obtain parental consent prior to collecting personal information from a child under the age of 13. COPPA greatly expands what kind of data requires verified parental consent before being collected from a child under the age of 13, and now includes persistent identifiers (i.e., an identifier used to recognize a user, browser or device over time and across sites and services, such as an IP address), absent certain narrow exceptions.

Also, COPPA has a category of so-called mixed-use sites and apps that may in part be directed to children but not primarily so. These sites and services must age-screen users in a neutral manner, and treat them differently based on self-reported age. Companies cannot block children under the age of 13 completely, but must offer them COPPA-compliant services. The FTC has made it clear that once an operator has notice that a persistent identifier belongs to a child under the age of 13, it must immediately take action to prevent a violation of COPPA. This includes ensuring that behavioral advertising is not served to them, that social media plug-ins and tools where they can submit publicly available content are not made available to them, and that analytics providers and other vendors do not use their identifiers or other personal information except pursuant to certain narrow exceptions.

Digital marketing campaigns that are clearly required to comply with COPPA because they are targeted to children often make basic mistakes, such as not posting a COPPA-compliant privacy policy (or any privacy policy at all), making the policy hard to find, assuming that it is OK to collect information from children so long as the site does not do anything with it, or failing to properly secure parental consent before personal information is collected from a child. YouTube’s new content policy places on content creators the onus of determining whether their content is child-directed, and leaves them facing the loss of income as well as the potential for enforcement actions and sizable fines from the FTC for violations. Under COPPA, there is never an easy answer about what makes a site (or content posted on a platform such as YouTube) directed to children, so it is helpful to involve an attorney who has experience advising companies and creators on COPPA compliance—as do members of your business-friendly team at Manatt.

To watch YouTube’s video about the policy changes, click here.



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