FSI-3575891-2 1 April 20091

Child Protection and Digital Content

Please use this fact sheet as a guide only; it does not constitute professional legal advice.

WEBSITE USEObtaining and Using Children’s Details

Asking children to register to use your site or using information they give you can causeproblems under Data Protection Act 1998. While the Act does not draw any distinction betweenadults and children, the Information Commissioner has made it clear in a number of publicationsthat particular care should be taken when collecting information about children.Websites which collect information from children need to have safeguards in place to ensurethat any processing is fair including ensuring that any notices are in age appropriate languageand clearly brought to the child’s attention.It is not acceptable to ask for personal information in return for a prize or ask for informationabout other peopleThe Act says a person must consent to the use of any personal information and there is a realquestion as to whether a child can give that consent so require parental consent for anyoneunder 16.ICO says “

If you need parental consent, you must have some way of verifying this. It will not usually be enough to ask children to confirm their parents have agreed by using a mouse click.If you need parental consent but decide that verifying the consent will involve disproportionate effort, you should not carry out your proposed activity

.” Methods of verifying consent mightinclude telephoning parents to verify consent or asking for a nominal credit card payment to bemade before the child can access the site.

Inappropriate content

While there are no specific laws about content for children except in relation to advertising (seebelow) you may wish to monitor all content and complete a questionnaire developed by ICRA(formerly the Internet Content Rating Association) ticking which of the elements in thequestionnaire are present or absent from your website. The broad topics covered are:

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The presence or absence of nudity

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The presence or absence of sexual content

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The depiction of violence

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The language used

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The presence or absence of user-generated content and whether this is moderated

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The depiction of other potentially harmful content such as gambling, drugs and alcoholThis generates a file containing labels linked to the content. Users, usually parents, can thenuse filtering software to allow or disallow access to websites based on the information declaredin the label.

FSI-3575891-2 1 April 20092

Advertising

The Advertising Standards Authority has guidelines for advertising aimed at children (defined asunder 16s) which include advertising on websites. These say that ads aimed at, or featuring,children should not: contain anything that is likely to result in their physical, mental or moralharm. This means that children should not be encouraged to enter strange places or talk tostrangers; be shown in hazardous situations or behaving dangerously except to promote safety;be shown using, or in close proximity to, dangerous substances or equipment without directadult supervision; or encouraged to copy any practice that might be unsafe for a child. Ads arealso banned if they exploit children’s credulity, loyalty, vulnerability or lack of experience. ormake them feel inferior or unpopular for not buying the advertised product.It should be made clear to children that adult permission should be sought before committing tocostly purchases and some indication of price should be stated in ads for expensive toys andgames; advertisers should not try to minimise the cost by using phrases such as “only”. Adsshould not encourage “pester power” i.e. encourage children to make a nuisance of themselvesto parents in order to obtain an item or exaggerate what is attainable by an ordinary child usingthe advertised product. Ads should not present children in a sexually provocative or sexualisedmanner. There are also rules concerning the advertising of food and drink products to children.

Contracts

Under contract law, the general rule is that a person does not have capacity to enter into acontract unless he or she is aged 18 or over, and any contract entered into can be voided by thechild until he or she is 18. An exception to this rule is where the contract is for 'necessaries',which would include contracts for education and accommodation but not most items advertisedon websites.This makes it very difficult to sue if a child does not pay for an item or service sold from yoursite. It also may mean that a child can revoke any consent given by her, for example for the useof her name or photo.

Moderating third party content such as chat groups, blogs or wikis

You are less at risk of an action for defamation or breach of copyright if you do not moderatesuch content than if you do so long as you have a procedure to take offending content downpromptly on being notified of the breach. However, although legally safer, it may be unethical toallow unmoderated content when dealing with children.If you do moderate the site you are making yourself responsible for the content so need toensure that you have a foolproof and clear system to prevent and take down defamatory,indecent or infringing material. The Home Office issued good practice guidance in December2005 for the moderation of interactive services for children:http://tinyurl.com/dmmfoy While the guidance does not make moderation compulsory, it states: "It is important for publicinteractive communication providers to undertake a risk assessment of their own service andthe potential for harm to children in order to decide what safeguards are necessary, includingthe use of moderation." and gives clear and readable guidelines for moderating content. Theguidance offers suggestions for the recruitment and training of moderators including consultingthe Criminal Records Bureau.You may also wish to moderate content which, while not strictly unlawful, is distressing tochildren such as chain letters which threaten dire consequences if the chain is broken.Whether or not you actively moderate the site you should have a clear, easy and ageappropriate link on each page whereby users can report inappropriate content to you and adisclaimer on each page stating that you are not responsible for third party content on the site.

TAKING AND USING FILM AND STILL PHOTOGRAPHS OF CHILDRENParental Consent and Model Release Forms

When shooting children under the age of 18, a model release with the parent or legal guardian'ssignature should be obtained. Using film or photographs of a child without consent, even inquite ordinary situations may be considered a breach of privacy. However this will depend on