In the aftermath of Google’s settlement with the FTC over its COPPA violations, some independent content producers on YouTube have expressed unhappiness with the decision. They are unclear how to comply with COPPA, and believe their revenue will diminish considerably. Some also worry that Google’s recently announced (link is external) system to meet the FTC settlement—where producers must identify if their content is child-directed—will affect their overall ability to “monetize” their productions even if they aren’t aiming to primarily serve a child audience.
These YouTubers have focused their frustration at the FTC and have mobilized to file comments in the current COPPA proceedings (link is external). As Google has rolled out its new requirements, it has abetted a misdirected focus on the FTC and created much confusion and panic among YouTube content producers. Ultimately, their campaign, designed to weaken the lone federal law protecting children’s privacy online, could create even more violations of children’s privacy. While we sympathize with many of the YouTubers’ concerns, we believe their anger and sole focus on the FTC is misplaced. It is Google that is at fault here, and it needs finally to own up and step up.
The truth is, it is Google’s YouTube that has violated the 2013 COPPA rule (link is external) pretty much since its inception. The updated rule made it illegal to collect persistent identifiers from children under 13 without parental consent. Google did so while purposefully developing YouTube as the leading site for children. It encouraged content creators to go all in and to be complicit in the fiction that YouTube is only for those whose age is 13 and above. Even though Google knew that this new business model was a violation of the law, it benefitted financially by serving personalized ads to children (and especially by creating the leading online destination for children in the U.S. and worldwide). All the while small, independent YouTube content creators built their livelihood on this illegitimate revenue stream. The corporate content brand channels of Hasbro, Mattel and the like, who do not rely on YT revenue, as well as corporate advertisers, also benefitted handsomely from this arrangement, allowing them to market to children unencumbered by COPPA regulations.
But let’s review further how Google is handling the post-settlement world. Google chose to structure its solution to its own COPPA violation in a way that continues to place the burden and consequences of COPPA compliance on independent content creators. Rather than acknowledging wrong-doing and culpability in the plight of content creators who built their livelihoods on the sham that Google had created, Google produced an instructional video (link is external) for content creators that emphasizes the consequences of non-compliance and the potential negative impact on the creators’ monetization ability. It also appeared to have scared those who do not create “for kids” content. Google requires content creators to self-identify their content as “for kids,” and it will use automated algorithms to detect and flag “for kids” content. Google appears to have provided little useful information to content providers on how to comply, and confusion now seems rampant. Some YouTubers also fear (link is external) that the automated flagging of content is a blunt instrument “based on oblique overly broad criteria.” Also, Google declared that content designated as “for kids” will no longer serve personalized ads.
The settlement and Google’s implementation are designed to assume the least risk for Google, while maximizing its monetary benefits. Google will start limiting the data it collects on made “for kids” content – something they should have done a long time ago, obviously. As a result, Google said it will no longer show personalized ads. However, the incentives for content creators to self-identify as “for kids” are not great, given that disabling (link is external) behavioral ads “may significantly reduce your channel’s revenue.” Although Google declares that it is “committed to help you with this transition,” it has shown no willingness to reduce its own significant cut of the ad revenue when it comes to children’s content. While incentives for child-directed content creators are high to mis-label their content, and equally high for Google to encourage them in this subterfuge, the consequences for non-compliance now squarely rest with content creators alone.
Let’s be clear here. Google should comply with COPPA as soon as possible where content is clearly child- directed. Google has already developed a robust set of safeguards and policies (link is external) on YouTube Kids to protect children from advertising (link is external) for harmful products and from exploitative influencer marketing. It should apply the same protections on all child-directed content, regardless of which YouTube platform kids are using. When CCFC and CDD filed our COPPA complaint in 2018, we focused on how Google was shirking its responsibilities under the law by denying that portions of YouTube were child-directed (and thus governed by COPPA). The channels we cited in our complaint were not gray-area channels that might be child attractive but also draw lots of teen and adult viewers. Our complaint discussed such channels as Little Baby Bum, ChuChu TV Nursery Rhymes and Kids Songs, and Ryan’s Toy Reviews. We did not ask the FTC to investigate or sanction any channel owners, because Google makes the rules on YouTube, particularly with regard to personal data collection and use, and therefore it was the party that chose to violate COPPA. (Many independent content creators concur indirectly when they say that they should not be held accountable under COPPA. They maintain that they actually don’t have access to detailed audience data and do not know if their YouTube audience is under 13 at all. Google structures what data they have access to.)
For other content, in the so-called “gray zone,” such as content for general audiences that children under 13 also watch, or content that cannot be easily classified, we need more information about Google’s internal data practices. Do content creators have detailed access to demographic audience data and are thus accountable, or does Google hold on to that data? Should accountability for COPPA compliance be shifted more appropriately to Google? Can advertising restrictions be applied at the user level once a user is identified as likely to be under thirteen regardless of what content they watch? We need Google to open up its internal processes, and we are asking the FTC to develop rules that share accountability appropriately between Google and its content creators.
The Google settlement has been a significant victory for children and their parents. For the first time, Google has been forced to take COPPA seriously, a U.S. law that was passed by Congress to express the will of the majority of the electorate.
Of course, the FTC is also complicit in this problem as it waited six years to enforce the updated law. They watched Google’s COPPA violations increase over time, allowing a monster to grow. What’s worse, the quality of the kids YouTube content was to most, particularly to parents, more than questionable (link is external), and at times even placed children seriously at risk (link is external). What parents saw in the offering for their children was quantity rather than quality content. Now, however, after six years, the FTC is finally requiring Google and creators to abide by the law. Just like that.
Still, this change should not come as a complete surprise to content creators. We sympathize with the independent YT creators and understand their frustration, but they have been complicit in this arrangement as well. The children’s digital entertainment industry has discussed compliance with COPPA for years behind closed doors, and many knew that YouTube was in non-compliance with COPPA.
The FTC has failed to address the misinformation that Google is propagating among content creators, its recent guidance (link is external) not withstanding. Moreover, the FTC has allowed Google to settle its COPPA violation by developing a solution that allows Google to abdicate any responsibility with COPPA compliance, while continuing to maximize revenue. It’s time for the FTC to study Google’s data practices and capabilities better, and squarely put the onus on Google to comply with COPPA. As the result of the current COPPA proceedings, rules must be put in place to hold platforms, like YouTube, accountable.