It’s Not COPPA-cated: CARU Determines VSCO Mobile App Not Directed Toward Children

Advertising Law

On January 21, the Children’s Advertising Review Unit (CARU) announced a social media and photo editor app that has become well known to teens and tweens for the “VSCO girl” trend is not an online service that is either primarily or secondarily directed toward children as defined by the Children’s Online Privacy Protection Act (COPPA) and CARU’s Guidelines for Online Privacy Protection (CARU’s Guidelines).

VSCO (most commonly pronounced “visco”) is a photo-editing app that adds whimsical, filmlike effects to smartphone pics. The app has become well known to teens and tweens. The term “VSCO girl” and the VSCO girl meme are a trend across several social media platforms. Like many memes, it is based on a social media trend and subculture meant to describe a teen archetype: a young girl who wears big T-shirts, loves scrunchies and is environmentally conscious. Identified by CARU during routine monitoring, the unit was concerned about the potential for the app to attract an online audience of children under 13 years of age, and so CARU considered whether the app would be considered “child-directed” under COPPA and CARU’s Guidelines.

After CARU notified VSCO of its concerns, VSCO asserted that it had intentionally built the app with a safety-by-design approach to protect the privacy of its users and to discourage the creation and distribution of abusive content on its platform. For example, the app does not allow public likes or follower counts, and there is no way to comment publicly on the platform. Further, the app does not serve ads; users have full control of what they see on their VSCO feed, and the content in a user’s feed is a chronological update based entirely on whom they have chosen to follow on VSCO.

With respect to the concerns as to whether its app is child-directed under COPPA, VSCO argued that its app is not attractive to children. It highlighted that the app does not use animated characters, offer child-oriented activities or incentives, or use child-oriented music or similar audio content that would be attractive to children. Additionally, VSCO stated, the language and other characteristics of its app are primarily focused on the benefits of a paid VSCO membership and describe functionality tailored to an audience of photo and video enthusiasts. For example, offers include how to “Get access to 200+ presets, video editing, and advanced tools like HSL and ‘Film Emulation Presets.’” VSCO further noted that it does not market the app to children under 13 years of age, it is not available in the “Kids” or “Family” sections of the app stores, and it is rated 12+ in the Apple App Store and Teen in the Google Play store, clearly indicating to consumers, both parents and children, that the app is not directed toward users under the age of 13. Finally, VSCO noted that as a part of creating a VSCO account, users are required to accept its Terms of Use, which specify that a user must be 13 years of age or older to use the app.

After reviewing the app and all the evidence presented by VSCO, CARU agreed with VSCO that its app was not directed primarily or secondarily to children under 13 years of age. Whether an online service is primarily directed to children is determined on a fact-specific, case-by-case basis. After considering VSCO’s arguments, CARU held that the app is a general audience service primarily directed toward adults. In reaching its decision, CARU determined:

  • The app did not use animated characters or use child-oriented music or similar audio content that is particularly attractive to children.
  • The language and other characteristics of the app are primarily focused on the benefits of a paid VSCO membership.
  • The app’s functionality is tailored to an audience of serious photo and video enthusiasts, and its promotions are tailored to that audience.
  • The platform’s design does not replicate social media platforms that are popular with teens and children or include features such as public likes or follower counts. Additionally, there is no way to comment publicly on the platform.
  • The app was neither responsible for nor did it encourage the use of the VSCO girl meme.
  • The popularity of the VSCO girl meme did not translate into a demonstrable increase of users or growth on its platform.
  • The app does not actively market to children under 13 years of age.
  • The app is rated 12+ in the Apple App Store and Teen in the Google Play store to indicate to consumers that the app is not directed toward users under the age of 13.
  • The app has received very few reports of underage users.
  • VSCO’s Terms of Service and Privacy Policy prohibit children under 13 from creating accounts.

Why it matters: CARU agreed with VSCO’s evidence that its platform is a general audience service that is primarily directed toward adults and secondarily directed toward teens. The factors cited above by CARU in finding that VSCO is a general audience service can be used as a practical set of guidance for operators of websites and online services when making the determination of whether a service is directed toward children under COPPA. Also, as a general audience service, VSCO is permitted under COPPA to age screen and block children under 13 from using its services. CARU was pleased that VSCO decided to implement a neutral age screen as an added measure to ensure that children under 13 do not register and use the platform after CARU opened its investigation.

In the wake of the COVID-19 pandemic and distance learning, children are spending significantly more time on mobile and digital devices, both for educational and entertainment purposes—which has resulted in both the Federal Trade Commission and CARU ramping up their COPPA enforcement efforts. If you have questions as to whether your app, platform or YouTube channel would be considered a general audience service or otherwise directed toward children under COPPA, your Manatt Advertising, Marketing and Media team member is standing ready, willing and able to help you with the analysis.

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