A Lawyer Explains the Very Messy Way YouTube Is Handling Videos for Kids

David Graham (www.dpgatlaw.com) is a lawyer who has represented clients creating content for YouTube and other platforms since 2011, and has been a prominent commentator in the fighting game community since 2010.

YouTube is an alluring place to make money, but one where power is distributed unevenly, and where the individual creator is often at the whims of corporations and policies that change on a moment’s notice. 2019 has been no different. Earlier this year, the Federal Trade Commission (FTC) and the New York Attorney General reached a landmark settlement with Google over allegations that YouTube had violated the Children’s Online Privacy Protection Act (COPPA). In short, Google agreed to pay $170 million in fines and to make significant changes to YouTube’s content and data collection rules.

These changes are real, significant, and worth understanding for anyone with a YouTube channel because of the impact they may have on advertising revenue and audience outreach. YouTube has begun requiring channel owners to classify their content as either “made for kids” or not, with anything labeled as made for kids losing access to personalized ads, comments sections, notification bells, and more.

And because YouTube has provided channel owners little guidance on how to navigate these new rules, misinformation and even some panic has spread.

COPPA, passed in 1998 out of concerns that children’s data could be misused online, is a US federal law that protects the privacy of children under the age of 13 by prohibiting the unauthorized or unnecessary use of children’s personal information. Online services that are used by or are directed to children must avoid collecting, maintaining, using, and disclosing children’s personal information without parental consent. Services that merely benefit from someone else collecting or maintaining children’s data are included as well.

The FTC has interpreted “personal information” to include not just names and contact information but also web “cookies” and other data that help a tracker know which websites users have visited and which products they may be interested in. That information allows advertising to be more targeted—and therefore more valuable.

As a result, sites and services used by or directed to children must refrain from collecting or maintaining children’s cookies and other personalized information without parental consent. This may result in less revenue for sites and services direct to children, but it should also theoretically result in better protected kids, and that’s not nothing. The FTC is authorized to fine violators up to $42,350 per instance, although numbers that high are rare.

In this case, Google and YouTube definitely have to abide by COPPA. But the FTC has interpreted the law more expansively than that: because YouTube channel owners benefit from YouTube’s collection and use of kids’ cookies, the FTC claims that they are subject to COPPA as well.

YouTube offered a “YouTube Kids” section, an under-13 age category, and marketing efforts calling itself the best way to reach kids online. At the same time, it failed to provide notice of its information practices to parents and tracked cookies of users who hadn’t yet declared they were over 13. It was gunning for trouble.

Channel owners are now presented with two setting choices for their content: made for kids or not made for kids. Channels and videos listed as made for kids will most likely see substantial reductions in both YouTube advertising revenue and in viewer participation and retention, which can reduce a channel’s ability to find more direct sponsorships.

YouTube is also creating an algorithm to identify channels and videos that are, as YouTube’s official announcement video tries to clarify, “clearly” made for kids. If channel owners don’t choose whether their content is made for kids or not, this algorithm will choose instead. Despite the many false positives and other issues that content creators have faced from other YouTube algorithms, the only appeals process available is hitting the “send feedback” button.

That’s no surprise. YouTube’s entire implementation of this new system seems to place as much responsibility on channel owners as possible. Many channels serve mixed audiences of both children and adults without intentionally directing their content to children, and the FTC knows this. And yet, instead of giving channel owners a fuller set of choices, including a mixed audience designation, YouTube has limited these options to an unrealistic binary that increases confusion and liability concerns for content creators who are not actually targeting children directly.

As a result, channel owners are left to decide on their own what “made for kids” means with what many of my friends and clients have worried could be a $42,350 sword hanging over their necks.

Is content that may be appropriate for kids the same as content that is made for kids? What about cases where child and adult interests intersect? Like YouTube, I can’t give specific legal advice. Issues that come up for channels stuck in the gray area may be too complex to discuss as generalities. But I can at least do a little better than YouTube did.

First, keep in mind that the real legal standard is not YouTube’s “made for kids” but COPPA’s “directed to children.” My reading of those two phrases is that “made for kids” has more wiggle room, with credible readings ranging from content made at a child’s direct request to content that wouldn’t be objectionable for kids; it can easily be read to include mixed audiences. The COPPA rule is a bit more forthright. Is a video actually directed toward children? Are such children its target?

The settlement and complaint can help us understand what types of content the FTC considers directed to children. In the settlement, the FTC looks at “subject matter, visual content, use of animated characters or child-oriented activities and incentives, music or other audio content, age of models, presence of child celebrities or celebrities who appeal to children,” among other factors.

The complaint’s examples of child-directed channels are more concrete. Two are famous toy brands Mattel and Hasbro, each of which have multiple channels dedicated to their toys and related animated videos. Two are Cartoon Network and Dreamworks TV, both of which show cartoons that are primarily popular with children. One features animated videos about a girl and her bear friend. Two more feature family-friendly skits with parents and children. Two show product reviews and unboxing videos for toys, games, and other products popular with kids, one starring a child. Two are dedicated to nursery rhymes. And the last one has both nursery rhymes and toy unboxings. These channels had content that regularly appeared on YouTube Kids and “About” sections that specifically said they’re for kids.

Although the FTC may consider other types of content to be directed to children as well, it seemed to focus on channels that were pretty clearly, well, “directed to children.”

In the case of a video game-related channel, for example, this may depend on the game involved, how the player acts and talks, what the player talks about, how the footage is edited, and so on. A Minecraft video telling a cute story about two characters with child-like voices will probably be treated differently from a Dota 2 video featuring competitive play and technical in-depth commentary, and should definitely be treated differently from a Mortal Kombat video with a foul-mouthed adult showing off bone crunching fatalities.

The FTC says it’ll conduct future sweeps of YouTube channels to verify compliance, implying that, in at least the most egregious cases, channel owners themselves may end up busted, too. That said, judging from the focus of the complaint, I’m not sure that the FTC is likely to fine many individual channel owners any time soon.

In any case, YouTube is placing a lot of responsibility for complying with COPPA on users’ shoulders, taking away substantial revenue for some and creating additional confusion and liability for others. And as usual in new legal regimes, the biggest concerns are for those who fall into the gray area. In these cases, the safest play is to contact and work with an experienced YouTube-focused attorney to make sure that videos and channels are categorized correctly on a case by case basis.

The FTC has asked for community feedback and may continue to update its rules in the future, and YouTube itself recently asked the FTC for additional clarification. My fervent hope is that the FTC will continue to look to the platform level as the proper place to levy any substantial fines.