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YouTube's New Rules on Children's Content Leaves Creators Scrambling

YouTube Content Creators Must Act

As of January 6, 2020, YouTube creators must designate their videos (both new as well as all videos previously posted) as either made for kids or adults. The new requirement has left esport, gaming, musician, vlog, and many other creators scrambling to correctly categorize their videos; otherwise, they face a risk of fines from the U.S. Federal Trade Commission (FTC).

The decision is a serious, albeit confusing one for many creators. When a video is designated “made for kids,” personalized ads, comments, live chat, the notification bell, playlisting options, the Mini Player, and other monetization features are disabled, which will likely substantially decrease affected content creators’ revenue. But many YouTube creators produce content that may be appealing to both adults and kids alike, creating uncertainty as to how to designate their videos.

Implementing too stringent of a “made for kids” scheme will reduce the take-home pay for content creators; too lax a regime may result in fines from the federal government. GT has developed several easy-to-use tools for content creators to make the YouTube designation process more streamlined and efficient, resulting in a reasonable level of compliance in a grey, complicated, and evolving landscape.

Why Has YouTube Implemented this Change?

The Children’s Online Privacy Protection Act (COPPA) passed in 1998 under a growing concern that the burgeoning community of internet services would misuse the information of children under the age of 13. The corresponding COPPA Rule requires child-directed websites and online services to obtain parental consent prior to collecting, maintaining, using, and disclosing children’s personal information.

In September 2019, YouTube reached a $170 million settlement with the FTC, in which YouTube agreed to develop, implement, and maintain a system that permits channel owners to identify their child-directed content on YouTube to ensure that YouTube and its channel owners comply with COPPA.

To implement this system, YouTube is now requiring its creators to denote whether a given uploaded video is “made for kids.” Creators may set this designation channel-wide (i.e., applying to all videos within a channel), or on a per-video basis for channels that contain both child-directed and adult-directed content. YouTube’s machine learning algorithm, YouTube Analytics, may automatically set the audience settings of certain videos that are clearly made for kids. Nevertheless, creators can override these settings, and creators will only be penalized if YouTube detects error or abuse.

Content creators bear the risk for this content as well because, under COPPA, services that merely benefit from someone else processing children’s data are treated as in-scope. Creators can be personally subject to potential fines up to $42,530 per incident.

What Is “Made for Kids”?

The FTC notes that there is no “one-size-fits-all answer” to determine if your site or content is directed to children. Certain channels or individual videos that feature clear intent to cater to an adult audience (i.e., graphic violence, explicit word usage, and drug usage) will have an easier time steering clear of the “made for kids” designation, while videos displaying unequivocal intent to cater to a child audience (i.e., re-runs of children’s television shows and nursery rhyme singalongs) will more likely than not be child-directed.

For videos that fall somewhere in between, the FTC has made clear that “general audience” content should not be confused with “mixed audience” content.

General audience content is not made for kids, as it is content that could appeal to everyone, but isn’t intended specifically for children, or content that is specifically intended for a teen or an older audience. Examples YouTube provides of general audience content, assuming no intent to target kids specifically, include:

  • A DYI video teaching hobbyists how to remake dolls or to make clay figurines

  • A family vlog telling other parents about an amusement park visit

  • A video featuring detailed instructions around creating mods or avatars

  • Animated content that appeals to everyone

  • A gaming video that features adult humor

Mixed audience content is a type of content that is made for kids. This type of content targets children as one of its audiences, even if it is not the main or primary audience. The FTC considers multiple factors when determining this murky distinction, including:

•the subject matter featured;

•the visual content visible;

•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;

•language or other characteristics of the site;

•whether advertising that promotes or appears on the site is directed to children; and

•any competent and reliable empirical evidence about the age of the audience.

There is no hard-line rule as to how to implement these factors, including whether each factor should be given equal weight, and whether there is a threshold number of factors that constitute a clear “made for kids” video.

However, the FTC does provide illustrative examples of “red flags” that indicate a video is likely made for kids, including:

•an “about” section of a video or a channel self-identifying their content as being made for kids, either explicitly or descriptively;

•one’s channel reviewed by other sites that review or evaluate children’s content; and

•any actual knowledge by the channel owner that either a video or channel has a significant number of child viewers, or actual knowledge that a video or channel is popular on YouTube Kids for extended periods of time.

©2020 Greenberg Traurig, LLP. All rights reserved. National Law Review, Volume X, Number 34
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About this Author

Kate Black Shareholder GT Law Miami SF Data, Privacy & Cybersecurity Life Sciences & Medical Technology IP Technology Licensing & Transactions
Shareholder

Kate Black’s practice focuses on data privacy, information protection, and commercial transactions in consumer technology, digital health, life sciences, and genetics. Kate provides companies with comprehensive, practical strategies for meeting their regulatory obligations while building and maintaining public trust and advancing innovative and emerging models of health care research and delivery. She’s managed every aspect of global privacy programs, including supervising privacy assessments, providing product strategy and counseling, managing complex vendor and partner agreements, and...

305-579-0500
Tyler Laurence Corporate Attorney Greenberg Traurig
Associate

Tyler J. Laurence is a member of the Corporate Practice in Greenberg Traurig's Miami office. He advises public and private companies on mergers and acquisitions, joint ventures, and corporate governance. Tyler also counsels clients on data privacy, information protection, and transactional IP matters.

305.579.0796
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