General Audience Website
COPPA classifies websites in one of two ways. The first is a website that is “directed at children.” The second is a general audience site.
The directed at children website is one that has an intended audience of kids under 13. For example, a blog devoted to a cartoon figure in a children’s television show such as Dora the Explorer would clearly be an online property directed at children.
As the name suggests, a general audience website is not directed at young children. Examples would be this site, a news site such as CNN.com, Wikipedia, Twitter and so on.
COPPA does not apply to general audience websites. Unfortunately, this is not the end of the discussion. There are two exceptions to this rule.
Where many online operators go wrong is assuming they have a general audience website without going through the proper evaluation. The FTC evaluates online platforms by looking at a number of factors including, but not limited to, the:
- Subject matter of the website;
- Video content on the site;
- Audio content on the site;
- Graphics and pictures on the site;
- Age of models used in any of the above;
- Presence of cartoon or animated characters directed at kids;
- Presence of incentives directed at children;
- Presence of tasks kids under 13 would enjoy;
- Nature of the language used in the text; and
- Appearance, theme and content of advertising for the site.
Let’s evaluate COPPALawAttorney.com using these standards. We’ll mark a “Yes” for each factor that might be directed at a child and “No” for each factor where we clearly do not have any child audience issues:
- Subject matter of the website: No – a legal site targeting businesses.
- Video content on the site: No – the only video at this time is an FTC product.
- Audio content on the site: No – There is none.
- Graphics and pictures on the site: No
- Age of models used in any of the above: Yes – all models are under 13.
- Presence of cartoon or animated characters directed at kids: No – none as I write this.
- Presence of incentives directed at kids: No.
- Presence of tasks kids under 13 would enjoy. No.
- Nature of the language used in the text: No.
- Appearance, theme and content of advertising for the site. No.
As you can see, the age of the models on the site is the only potential issue that could signal a need to comply with COPPA. The classification of this site is clearly general audience. The site need not comply with COPPA.
Determining if a website is a general audience platform is usually more difficult. For example, what about sites that sell products intended for kids such as toys? How about anime sites? What about fan sites for celebrities, particularly celebrities who are teens or younger? The only way to make the determination is to do a case-by-case evaluation and compare the site to other cases the FTC has either pursued or considered in the past.
COPPA also applies when there is “actual knowledge” that children under the age of 13 are using your website. As soon as you become aware of their existence, COPPA compliance becomes a must. There is no exception to this rule, and the FTC takes a very aggressive attitude towards businesses that have actual knowledge of underage users and do not comply with COPPA as one app company recently learned.
Path is a company that produces a popular app. The FTC charged the company with violations of COPPA. The particular charge was Path had actual knowledge that over 3,000 kids under the age of 13 were using the app. Although Path settled the case and did not admit to liability, the settlement of $800,000 suggests the FTC would have been able to prove actual knowledge.
COPPA issues can be complex. Actual knowledge determinations are a different story. If you are aware kids under 13 are using your website, app or other service, you must comply with COPPA. It is as simple as that.
Ever visited a forum or site that asked for your age or required you to click a button indicating you are 13 years old or older? These pieces of code are known as age gateways. They are used as a legal tactic on general audience sites to help insulate a business against potential COPPA claims.
The strategy is based on a simple concept – kids lie. If a child tries to register for a site and is rejected because they enter their age as ten years old, the child is going to quickly figure out what is happening. From that point forward, they will enter their age as 21 or older so they can get into the site. In short, they lie.
Those of you who are legal savvy might be thinking a child under 13 cannot form a contract as a matter of law. You are correct, but the FTC still allows online operators to rely on this standard.
As a general rule, COPPA does not apply to a general audience website. There are two main traps in this area as noted above, so don’t just assume you are in the clear with your site. Contact us today to obtain a legal opinion on your website.