Some companies think that they are small and can fly under the radar, and need not worry about compliance. They should rethink their analysis of their legal risks after the recent FTC action against a small social networking site.
On November 8, 2011 the FTC announced a proposed settlement with the social networking site www.skidekids.com, which collected personally information from children without obtaining prior parental consent, in violation of COPPA, and made false statements in its website privacy notice, in violation of the FTC Act.
In this case, the personal information of 5,600 children was illegally collected. This was much less than the violations identified in some of the recent FTC COPPA enforcement actions. For example, the 2006 action against Xanga revealed that Xanga had collected 1.7 million records, the 2008 action against Sony, that Sony had collected 30,000 records, and the 2011 action against W3 Innovations identified 50,000 illegally collected records.
The social networking site Skid-e-kids targeted children ages 7-14 and allowed them to register, create and update profile information, create public posts, upload pictures and videos, send messages to other Skid-e-kids members, and “friend” them.
According to the FTC complaint, the website owner – a sole proprietor – was prosecuted for:
- Failing to provide sufficient notice of its personal data handling practices on its website;
- Failing to provide direct notice to parents about these practices; and
- Failing to obtain verifiable parental consent.
In addition, these practices were found to be misleading and deceptive, which in turn was deemed to violate Section 5 of the FTC Act.
The site online privacy statement claimed that the site requires child users to provide a parent’s valid email address in order to register on the website and that it uses this information to send parents a message that can be used to activate the Skid-e-kids account, to notify the parent about its privacy practices, and that it can use the contact information to send the parent communications about features of the site.
According to the FTC, however, Skid-e-kids, actually registered children on the website without collecting a parent’s email address or obtaining permission for their children to participate. Children who registered were able to provide personal information, including their date of birth, email address, first and last name, and city.
The Proposed Settlement
The proposed Consent Decree and Settlement Order against Jones O. Godwin, sole owner of the site www.skidekids.com is available at http://www.ftc.gov/os/caselist/1123033/111108skidekidsorder.pdf. The proposed settlement would:
- Bar Skid-e-Kids from future violations of COPPA and misrepresentations about the collection and use of children’s information.
- Require the deletion of all information collected from children in violation of the COPPA Rule;
- Require that the site post a clear and conspicuous link to www.onguardonline.gov, the FTC site focusing on the protection of children privacy, and that the site privacy statement as well as the privacy notice for parents also contain a reference to the On Guard Online site;
- Require that, for 5 years, the company engaged qualified privacy professionals to conduct annual assessments of the effectiveness of its privacy controls or become a member in good standing of a COPPA Safe Harbor program approved by the FTC;
- Require that, for 8 years, records be kept to demonstrate compliance with the above.
A lenient fine … subject to probation
An interesting aspect of the proposed settlement is that the settlement, in effect, imposes only a $1,000 fine to the defendant. The fine is to be paid within five days of the entry of the order. However, if Skid-e-Kids fails to comply with some of the requirements of the Settlement, it will have to pay the full $100,000 fine that is provided for in the settlement.
Specifically, a $100,000 will be assessed if:
- The defendant fails (a) to have initial and annual privacy assessment (for a total of 5 annual assessments) conducted by a qualified professional approved by the FTC and identifying the privacy controls that have been implemented, how they have been implemented and certifying that the controls are sufficiently effective; or (b) to become a member in good standing of a COPPA Safe Harbor program approved by the FTC for 5 years; or
- The disclosures made about the defendant’s financial condition are materially inaccurate or contain material misrepresentations.
The Lesson for Site with Children Content
This new case is a reminder that the COPPA Rule contains specific requirements that must be followed, no matter the size of the site, when intending to collect children personal information. The COPPA rule defines procedures and processes that must be followed rigorously.
Among other things, the COPPA Rule requires websites that are directed to children and general audience websites that have actual knowledge that they are collecting children information to:
- Place on its website a conspicuous link to its privacy statement;
- Provide specified information in the website privacy statement, describe in clear terms what personal information of children is collected, how it used, and explain what rights children and parents have to review and delete this information;
- Provide a notice directly to the parents, which must include the website privacy statement, and inform the parents that their consent is required for the collection and use of the children’s information by the site, and how their consent can be obtained;
- Obtain verifiable consent from the parents before collecting or using the children’s information;
- Give parents the option to agree to the collection and use of the children’s information without agreeing to the disclosure of this information to third parties.
In addition, we suggest also including, clearly and conspicuously, (a) in the website privacy statement; (b) in the notice to parents; and (c) at each location where personal information is collected a notice that invites the user to visit the On Guard Online website of the Federal Trade Commission for tips on protecting children’s privacy online: www.onguardonline.gov/topics/kids-privacy.aspx.