In this remote era, companies are increasingly being approached by their business teams with ideas about products and services that involve video or audio recordings of their consumers. It may also involve letting people manipulate photos of themselves. Sometimes, those recordings and pictures are of children. Content that contain images or audio of individuals are considered personal information under many laws, including the Children’s Online Privacy Protection Act (COPPA). What does this mean for companies? As we discussed in our previous blog post, COPPA requires obtaining parental consent if the personal information collected is being collected by the company online, and being collected from the child. The FTC’s recently streamlined FAQs help companies find and understand obligations if collecting photos or recordings from children. Namely, a reminder that this content is personal, and does require verifiable parental consent before being collected.
The FAQs give some examples of when a company’s activities might fall outside the consent obligations. One is if the company blurs the images of children’s photos. (FAQ F(3)). Another is if the photo is uploaded by someone else (a parent, grandparent, etc.). The Rule, the FTC reminds companies, applies only when information is supplied by the child. (FAQ F(4)). Consent is also not required if photos are pre-screened to delete images of the child as well as any other personal information (geolocation metadata for example) and persistent identifiers that are collected are used only for internal app operations. (FAQ F(2)). Another exception is if the photo or video is stored on the user’s device, and is not transmitted to the company. (FAQ F(5)). Finally, consent is not needed if the child’s voice is collected to “replace the written word,” i.e., in situations where a child can do a voice command). This exception applies only if the business maintains the file only for the brief time necessary for that purpose.
Putting it into Practice: While exceptions to obtaining parental consent exist under COPPA when collecting audio, video and photographs from children, companies should proceed with caution. The revamp of the FTC COPPA guidelines suggests that the FTC will be looking carefully at companies’ activities in this area to ensure that they are properly collecting consent unless an exception applies.