If you are feeling stressed and confused about YouTube, COPPA, Content Creation and the FTC you are not alone. The recent and historic fine levied on YouTube and parent company Google by the FTC is a clear indicator to content creators on all platforms that winter change is coming. I have gotten quite a few questions about this because I am a lawyer and a content creator..so let’s talk about it a bit more.

What can content creators do?

First, the fact that you are paying attention is a huge plus. You are taking action to make sure that your content isn’t going to create problems for you. If you are on a non-monetized platform, pay attention to the rules regarding collecting or encouraging the collection of information. If you are on YouTube then you are aware that you need to start indicating if your content is made for children and understand what content could be considered to have an ‘intended audience’ of children under 13. 

Is your content ‘child-oriented’?

The FTC published a Six-Step Compliance Guide in 2013. Despite this YouTube asked the FTC for further clarification last week. This is likely because YouTube is getting screamed at by content creators who have no idea how to comply and YouTube is doing its best to pass all the responsibility for compliance along to creators. This despite the fact that the FTC listed how YouTube must comply, and the fact that COPPA was enacted into law before YouTube even existed and they have blatantly ignored it for over 13 years…but I digress…

‘Child Oriented’ or whether the ‘Intended Audience’ is under 13 is determined by the FTC by evaluating the following factors. 

  1. The subject matter
  2. Visual content
  3. Use of animated characters or child-oriented activities & incentives
  4. The kind of music or other audio content
  5. Age of models
  6. Presence of child celebrities or celebrities who appeal to children
  7. Language or other characteristics of the site
  8. Whether advertising that promotes or appears on the site is directed to children &
  9. Competent and reliable empirical evidence about the age of the audience 

If you are thinking that this could be literally anything and this isn’t helpful at all, you aren’t alone. With regard to the content, you create remember that COPPA doesn’t forbid content created for children under the age of 13. It prohibits certain tracking behaviors. So if you make content that falls under one of these prongs as a YouTube creator first you need to make sure to indicate it on the YouTube platform itself.

Next, you need to be aware of what you shouldn’t be doing.

What does COPPA prohibit?

“ You cannot collect information online regarding children (any under 13) through means like passive tracking, requesting, prompting, or encouraging them to submit personal information or enabling a child to make personal information available in an identifiable form” FTC.gov. This is where YouTube got into the shit. YouTube was tracking viewers of ‘children-oriented’ content and serve ads based on tracking behavior. 

If children under the age of 13 are being tracked by cookies like Google Adsense or Facebook pixel then the operator of the website MUST have VERIFIABLE PARENTAL CONSENT. Yuuuppp. This is what YouTube was lacking. However, I think the FTC is really clear that the WEBSITE OPERATOR is the one responsible, that would be YouTube. 

This prohibition on collecting information extends to usernames and screen names. Yes, that means asking viewers to comment is problematic. The first step is understanding your content and making sure it’s clear who it’s intended for. The second step is understanding what you can and can’t do.

What can creators do to protect themselves?

While I think YouTube will continue to try to pass the responsibility to creators it is ultimately YouTube who has the power to stop tracking. What this likely means for creators whose content can be considered child-oriented is that their ad revenue will go down, they will see monetization turned off on some content, they will see comments potentially disabled on some content. We know that engagement drives how videos show up in search and how they are suggested by YouTube so videos will likely be suggested less. Creators need to be ready to ride this out while YouTube figures out how and if they will continue to serve ads on child-oriented content. 

One of the most important things in all of this is that Creators make sure they don’t encourage information to be shared, that means not asking for comments or for engagement that requires a screen name or username to be shared. That they do not host giveaways where there is no age verification to ensure minors under 13 don’t enter. The onus is on YouTube but creators will get thrown under the bus in a second. So be smart, stay informed (you can always follow me on social cause I am not going to stop talking about this anytime soon @theemilydbaker… shameless plug over) and talk to other creators in your space. 

I also have two podcast episodes on this topic, or you can find Get Legit Law & Sh!t in your favorite podcast player.

If you have any questions hit the contact form below, I am here to help.

If you have a community that needs this information I am here to help. Shoot me an email to hello@emilydbaker.com. I am happy to talk to your community, podcast, or channel about how to Get Legit™.

Emily D. Baker, Esq.

Emily D. Baker, Esq.

Badass Lawyer for Online Business

Emily has been running business for 15 years and has ove 13 years of legal experience. She spent 10 years at the Los Angeles County District attorney's office where she truly learned to be a solopreneur. Emily has built her consulting and speaking business from the ground up, in her garage jamming out to 90's music. She specializes in no BS practical advice for the starting and scaling online entreprenur. Emily will tell you what the business gurus can't in a way that is both hillarious and empowering.

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