Children's data protection vs marketing companies

Abstract

The opportunity that the Internet represents for children is undeniable. The increasing amount of children's personal data collected online raises an issue balance: how to protect children's privacy without impeding the development of children's online opportunities. Businesses collect children's personal data in order to profile and target them. Aware of the risks such practices represent for children's data protection, the US Congress has legislated the Child Online Privacy Protection Act (the so-called ‘COPPA’) which became effective in April 2000. In Europe, the collection and use of personal data is covered by the 1995/46 European Directive which has the fundamental aim of protecting individual privacy. The Directive does not, however, distinguish between data subjects who are adults and those who are children: it provides no specific protection for children's privacy.This paper considers the different approaches adopted in the USA and in Europe with regard to children's online data protection. In parallel, it appears that soft law is used as a new tool to regulate children's privacy. Particular attention will be paid to soft law adopted in the UK and in France.

Keywords:

• children
• data protection
• COPPA

Notes

European Commission, IP/08/207, ‘Let's listen to children: they know how to make the Internet a safer place!’, Press release, Brussels, 12 February 2008.

Children's Online Privacy Protection Act of 1998, US Federal Law, 15 USC §6501–6506.

Directive 1995/46/EC on the protection of the individual with regard to the processing of personal data and on the free movement of such data, ‘(10) Whereas the object of the national laws on the processing of personal data is to protect fundamental rights and freedoms, notably the right to privacy, which is recognized both in Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and in the general principles of Community law; whereas, for that reason, the approximation of those laws must not result in any lessening of the protection they afford but must, on the contrary, seek to ensure a high level of protection in the Community’.

Kathryn C. Montgomery, ‘Children in the Digital Age’, The American Prospect, no. 27 (July–August 1996): 69.

Stephen Kline, Out of the Garden: Toys, TV and Children's Culture in the Age of Marketing (London: Verso, 1993), 163.

Alexandra Rankin Macgill, ‘Parent and Teenager Internet Use’, Pew Internet & American Life Project, 24 October 2007, http://www.pewinternet.org/pdfs/PIP_Teen_Parents_data_memo_Oct2007.pdf (accessed July 2008).

Bobbie Johnson, ‘Online Marketers Aim for the Kids’, The Guardian, 17 October 2007, Technology, http://www.guardian.co.uk/technology/2007/oct/17/advertising (accessed July 2008).

Ibid.

Michael Freeman, ‘The Convention: An English Perspective’, in Children's Rights – A Comparative Perspective, ed. Michael Freeman (Brookfield: Dartmouth, 1996), 103.

‘Convention on the Rights of the Child’, United Nations, Adopted and opened for signature, ratification and accession by General Assembly Resolution 44/25 of 20 November 1989.

Ibid., S.3.1: ‘In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.’

Jean Carbonnier, Droit civil – Tome 2, La Famille, Les Incapacités (Paris: PUF coll. Thémis, 2004), 370.

Federal Trade Commission, ‘Privacy: A Report to Congress’, June 1998, www.ftc.gov/reports/privacy3/priv-23a.pdf (accessed July 2008).

Federal trade Commission, ‘Implementing the Children's Online Privacy Protection Act – A Report to Congress’, February 2007, http://www.ftc.gov/reports/coppa/07COPPA_Report_to_Congress.pdf (accessed July 2008).

Penelope Leach, Children First – What Society Must Do – And is Not Doing for Children Today (London: Penguin Books, 1995), 205.

Children's Online Privacy Protection Act of 1998, Section 1303 (b) (I) (A).

Ibid., (ii).

Ibid.

Ibid., 3

Ibid., 3.

Article 29, Data Protection Working Party, ‘Working Document 1/2008 on the Protection of Children's Personal Data (General Guidelines and the Special Case of Schools)’, 18 February 2008.

The Direct Marketing Association, ‘The DMA Code of Practice for Commercial Communications to Children Online’, http://www.myschoollunch.co.uk/Telford/files/general/DMA_Code.pdf (accessed July 2008).

Information Commissioner's Office, ‘Good Practice Note – Collecting Personal Information using Websites’, http://www.ico.gov.uk/upload/documents/library/data_protection/practical_application/collecting_personal_information_from_websites_v1.0.pdf (accessed July 2008).

Tanya Byron, ‘Safer Children in a Digital World – The Report of the Byron Review’, Department for Children, Schools and Families, and the Department for Culture, Media and Sport, 27 March 2008. http:www.dcsf.gov.uk/byronreview/pdfs/Final%20Report%20Bookmarked.pdf (accessed November, 1998).

Ibid., 58.

Ibid.

Commission Nationale Informatique et Libertés, ‘Internet et la collecte des données personnelles auprès des mineurs’, 12 June 2001.