The bitterest debates involving the internet have revolved around how to address content that may not be appropriate for certain age groups. Some issues – particularly those involving child pornography and child erotica – have generally fit within pre-existing laws, and public consensus regarding regulating access. Others, such as marketing to children, and the means in which access to adult content should be regulated, have not fit within existing laws. Many issues in this area are now subject to a patchwork of laws and regulations. This patchwork results from some regulatory consensus – particularly on marketing issues – and the inability of Congress to find a suitable method to restrict access to material typically thought of as suitable only for adults.
Child Pornography / Child Erotica
U.S. law draws a distinction between Child Pornography and Child Erotica. While the laws regulating this content contain sufficient detail to distinguish between them, at its base the distinction is based on first amendment issues surrounding the publication and viewing of Child Erotica.
The laws regulating Child Pornography are strict liability laws. This means that you have violated the laws when you knowingly create, distribute or view material considered to be child pornography. For companies in high-risk areas, such as web hosting companies, this means that when you receive a complaint that you are hosting child pornography, your employees may not look at the content to determine whether it is in fact child pornography. There is no safe harbor provision in the law for engaging in “private investigations” into child pornography. Consequently, companies in areas that are might be attractive to child pornographers should develop policies to address these reports, and any investigative activities.
While child erotic content is not per-se illegal, companies doing business on-line would be wise to make a decision whether their products will be sold to entities engaged in the distribution of Child Erotica. Because of the strict liability nature of the laws governing child pornography, companies whose customers may, or may not, be involved with child erotica should create a compliance plan addressing how this type of content will be handled. Because of the high profile nature of child pornography investigations, and the speed at which enforcement may occur, it may be difficult to recover from the damage caused by law enforcement actions.
Marketing to Children
Most marketing to children is covered by the “Children’s On-line Privacy Protection Act” or “COPPA.” COPPA regulates the methods companies may use to solicit and use certain information from children. For the purposes of COPPA, children are under 13 years of age. Companies engaged in direct marketing to children are required to implement procedures to secure the consent of adults to the collection of personal information about children, and create data protection policies, among other things. Companies not directly involved in marketing to children, would be advised to familiarize themselves with the provisions of COPPA to avoid inadvertently violating it based on general marketing campaigns, and implementation of privacy policies.