A California appeals court allows a class action lawsuit to pursue against Google and YouTube, as well as several children and family media companies and YouTubers who operate YouTube channels — including Dreamworks Animation; Hasbro; Mattels; Cartoon Network; Ryan’s World, a kidfluencer channel formerly known as Ryan’s ToysReview; Pocket.watch, which has a partnership agreement with Ryan’s World; ChuChu TV Studios; and CookieSwirlC, an independent VTuber with 19 million subscribers.
This December appeals court opinion may expand legal exposure and liability for creators with children in their audience, though Google and YouTube are arguably responsible for user tracking and audience data collection.
The class action lawsuit was first filed in October 2019 by a class of children through their parents and guardians. The class action lawsuit allegations center on the use of targeted advertising powered by persistent identifiers that allowed Google and YouTube to collect data and track children’s online behavior without proper parental consent. In August 2021, the district court upheld a motion to dismiss filed by YouTube and the channel owners, so the class of children appealed the dismissal to the Ninth Circuit — aka the Federal Circuit Court of Appeals — to overturn the lower court’s decision and allow the motion to class action to continue.
This latest court ruling by Judge M. Margaret McKeown now overturns portions of the lower court’s decision to dismiss the class action lawsuit. In short, YouTube and the channel owners couldn’t stop the class action lawsuit. This Ninth Court Opinion, which can now be used in similar cases to support claims of violations of state privacy by authors, potentially expands legal exposure and liability for authors to include violations of state privacy laws.
YouTubers may recall that as part of their settlement with YouTube in 2019, the Federal Trade Commission (FTC) clarified that channel owners can be held just as liable as any website or online for violations of the Children’s Online Privacy Protection Act (COPPA). Service provider. In the 2019 lawsuit against YouTube, the FTC specifically named several defendants in that class action lawsuit, including CookieSwirlC — prior to the channel’s April 2022 reveal of a virtual avatar and transition from unboxing videos to Let’s Play content — and Mattel for operating related channels with its Barbie, Monster High, Hot Wheels and Thomas & Friends brands.
“I think the message from the FTC is that they are stepping up enforcement of these cases and that states are also trying to set an example for companies that cannot comply with these regulations regarding children’s data,” Debbie Reynolds, Privacy Advisor and Host from The data diva talks about data protection podcast, Passionfruit said.
Depending on state privacy laws and associated consumer protection regulations, claims against creators and their businesses may be brought by either state agencies or individual citizens whose privacy rights have been compromised because an creator’s content was targeted to children. It is important to note that lawsuits alleging that an originator has violated COPPA cannot be brought by individuals such as the parents of the children in this class action lawsuit. Instead, COPPA enforcement is managed by the FTC.
The potential liability of the creator depends largely on whether or not a content distribution platform adequately complies with laws and regulations. Liability could also extend to brands that have partnered with sponsored content creators if the content is directed to children and is distributed in a way that does not comply with state privacy laws or COPPA.
For example, if a creator uploads content to TikTok that is intended for children, and TikTok does not have adequate safeguards in place to protect children’s privacy, a creator could be held liable in addition to TikTok. Through its official business blog, the FTC confirmed in November 2019 that “COPPA applies equally [to YouTube channel owners] That would be the case if the channel owner had their own website or app.”
“The FTC doesn’t have the resources to track every family vlog [Minecraft] Channel, Animator, and Animal Channel,” vlogger, author, and creator advocate Hank Green noted in a series of tweets following the publication of the FTC’s guidelines for copyright holders. “The law, as written, just doesn’t work. But creators must continue to comply.”
Creators may be able to reduce their presence by focusing on what they can control versus what a platform can control when it comes to both the content itself and delivery to an underage audience. Whether or not this argument will hold up in court remains to be seen until the FTC challenges the matter directly or updates the rules and issues additional guidance.
Currently, the FTC looks at content through the lens of several factors when determining whether or not content is considered “directed to children.” These factors can be divided into either creator-controlled, platform-controlled, or a mix of both.
Factors controlled by the creator include themes, visual content, use of animated characters or child-friendly activities and incentives, music, sound, ages of the models, and the presence of celebrity children or celebrities who appear to be children. Both creators and platforms are responsible for the language used on the site, whether ads targeted at children appear on the site, and whether there is “expert information” that reveals information about the age of the audience.
The rise of VTubers and similar video styles that prominently use animated characters poses a challenge to the proper implementation of FTC guidelines. For example, the FTC says, “Just because your video has bright colors or animated characters doesn’t mean it that you are automatically covered by COPPA.”
Until the FTC issues additional guidance or a rule change, creators can rely on platforms that provide self-service tools to label their content. YouTube is an example of a platform that provides a robust set of tools and guides for creators creating content for children. However, the tools alone still fail to address the lack of clarification in the gray area between content that children might enjoy and content that is aimed directly at children.
“Creators know they’re losing features, audience, and money by labeling their content ‘For Kids,'” Green explains in the Twitter thread. “But they also risk being fined or sued if they don’t.”
Adult creators creating content specifically aimed at children is nothing new, especially since platforms have started sharing ad revenue with creators. “Kidfluencers” like Ryan’s World’s Ryan Kaji have been the subject of headlines for years, often focusing on the role parents and guardians play behind the scenes. In a 2021 interview with timeKaji’s mother, LoAnn Guan, said, “If I could do it again, I would try to incorporate more of the educational component from the start.”
Prior to the FTC’s crackdown on YouTube in 2019, children’s content made available through the YouTube Kids app remained largely unmoderated compared to producers and distributors of traditional children’s programs such as Paramount Global’s PBS and Nickelodeon, which are now also distributed in various forms on YouTube .
As of January 2023, the class action lawsuit goes back to the lower court to allow the class of children to pursue their claims and possibly amend their complaint to add more support for their arguments, while YouTube continues to dismiss additional arguments in support of the present case. The companies running the channels may still be able to petition the court to dismiss them from the case – as it was arguably Google and YouTube who were responsible for the use of data trackers on children.
Passionfruit emailed the companies and creators named in the class action lawsuit, as well as the attorneys representing the children and families in the class action lawsuit, and did not receive a response in time for the publication of this article.
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