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New Zealand's longest-running online daily news and commentary publication, now in its 25th year. The opinion pieces presented here are not purported to be fact but reasonable effort is made to ensure accuracy.

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How can they do this?

20 November 2019

I could be facing a US$43,000 fine from the FTC in the USA.

Well not just me, but *everyone* who uploads or has uploaded videos to YouTube could be facing this fine (or multiple fines) as of next month.

How does this work?

Well the USA has a law on its books called COPPA (the Children's Online Privacy Protection Act). This law is, as you've probably already deduced, designed to protect the privacy of children (being anyone under the age of 13 by the definition of US legislators) when they engage in online activities.

Earlier this year, YouTube was found to have infringed COPPA and finally settled with the FTC (Federal Trade Commission) by paying a landmark US$170m fine in September. Clearly the internet giant does not want a repeat of that process so, in a deal with the FTC, they have decided that those who upload videos should now be held liable for such crimes.

Um... excuse me?

I am a content creator who uploads videos to YouTube but *I* do not track anyone so why should *I* be liable for the actions of YouTUbe?

Why the hell should I face the risk of a US$43K fine if YouTube is caught tracking someone who watches my videos, should they be under 13 years of age?

How on earth can I, or anyone else, be held legally liable for the actions of a third party over which I have no control?

This is utterly outrageous!

However, we're talking the USA here and money trumps commonsense or even the law every time.

YouTube has announced that those who upload content must now specify whether their videos are targeting under-13-year-olds or not. Get it wrong and the uploader could face that $43K fine, even though they aren't doing the tracking.

On the face of it, this might sound fine and dandy... if you're not creating child-oriented content then simply delcare your videos as not targeting under-13-year-olds and your safe, right?

Errr... well no actually.

Because... when it comes to dishing out the fines, your opinion doesn't matter. Ultimately, it's the opinion of the FTC that matters and if, for whatever reason, your video becomes a viral hit within the ranks of kids, you could still be facing a hefty financial penalty because YouTube, based on your assurances, will have been tracking people who watched it.

Yes, that's right YOU will be facing the penalty even though YouTube was the entity that broke the COPPA law.

Another option might be to simply play it safe and declare all your videos as being designed for under-13-year-olds because then you'll know that YouTUbe won't be tracking those who watch them.

Well yes, you could do that... but if you're a professional YTer (like me) this would effectively cripple your revenues from advertising. Since the viewers of "kids" vids won't be tracked, the advertising will not be targeted and thus it will be sold at a much lower rate than regular advertising. Channels that are already "marginal" as a way to earn a living will simply wither and die as the revenues they generate drop dramatically from such a strategy.

Also, since the ad-rates on these videos will be so low, YouTube's algorithm will be unlikely to promote them and thus any channel following this strategy will also see a marked decline in views, further eroding revenues.

So what's the solution?

Oddly enough, it seems that YouTube knows how old those who watch its videos are. I get analytics for my videos that break down the viewership age quite nicely. Also, if you're not logged in, YouTube assumes you're under 18 and will not provide access to any videos that are considered to be adult-themed or contain potentially violent or disturbing content.

So why can't this strategy be extended to identify those who are under 13 and simply not track them?

Answer: money and liability.

The negotiated deal with the FTC is great for YouTube because it completely absolves them of responsibility and the risk of future fines yet it allows them to continue tracking the maximum number of people -- thus preserving their bottom line profits.

YouTube really has become the ultimate example of how money talks and how easily the US legal framework can be corrupted in favour of the interests of large corporations.

Unacceptable!

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