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Back to School Special: Recordings, Photos, Kids, and Parental Consent

In this remote era, companies are increasingly being approached by their business teams with ideas about products and services that involve video or audio recordings of their consumers. It may also involve letting people manipulate photos of themselves. Sometimes, those recordings and pictures are of children. Content that contain images or audio of individuals are considered personal information under many laws, including the Children’s Online Privacy Protection Act (COPPA). What does this mean for companies? As we discussed in our previous blog post, COPPA requires obtaining parental consent if the personal information collected is being collected by the company online, and being collected from the child. The FTC’s recently streamlined FAQs help companies find and understand obligations if collecting photos or recordings from children. Namely, a reminder that this content is personal, and does require verifiable parental consent before being collected.

The FAQs give some examples of when a company’s activities might fall outside the consent obligations. One is if the company blurs the images of children’s photos. (FAQ F(3)). Another is if the photo is uploaded by someone else (a parent, grandparent, etc.). The Rule, the FTC reminds companies, applies only when information is supplied by the child. (FAQ F(4)). Consent is also not required if photos are pre-screened to delete images of the child as well as any other personal information (geolocation metadata for example) and persistent identifiers that are collected are used only for internal app operations. (FAQ F(2)). Another exception is if the photo or video is stored on the user’s device, and is not transmitted to the company. (FAQ F(5)). Finally, consent is not needed if the child’s voice is collected to “replace the written word,” i.e., in situations where a child can do a voice command). This exception applies only if the business maintains the file only for the brief time necessary for that purpose.

Putting it into PracticeWhile exceptions to obtaining parental consent exist under COPPA when collecting audio, video and photographs from children, companies should proceed with caution. The revamp of the FTC COPPA guidelines suggests that the FTC will be looking carefully at companies’ activities in this area to ensure that they are properly collecting consent unless an exception applies.

Copyright © 2022, Sheppard Mullin Richter & Hampton LLP.National Law Review, Volume X, Number 239
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About this Author

Liisa Thomas, Sheppard Mullin Law Firm, Chicago, Cybersecurity Law Attorney
Partner

Liisa Thomas, a partner based in the firm’s Chicago and London offices, is Co-Chair of the Privacy and Cybersecurity Practice. Her clients rely on her ability to create clarity in a sea of confusing legal requirements and describe her as “extremely responsive, while providing thoughtful legal analysis combined with real world practical advice.” Liisa is the author of the definitive treatise on data breach, Thomas on Data Breach: A Practical Guide to Handling Worldwide Data Breach Notification, which has been described as “a no-nonsense roadmap for in-house and...

312-499-6335
Snehal Desai, attorney, Sheppard Mullin
Attorney

Snehal Desai is an associate in the Intellectual Property Practice Group in the firm's San Francisco office. She is a member of the Privacy and Cybersecurity Team, the Advertising Team and the Technology Transactions Team.

Areas of Practice

Advertising: Snehal advises clients in conducting advertising campaigns, contests and sweepstakes, and brand marketing campaigns. 

Technology and Commercial Transactions: Snehal drafts and negotiates...

415-774-2960
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