FTC Investigates Instagram for Failing to Protect Children's Privacy

2. Instagram is “directed to children.”

746. Independent of Meta’s “actual knowledge” of users under age 13, Meta is also subject to COPPA’s verifiable parental consent requirement because Instagram, or a portion thereof, is “directed to children.” See 15 U.S.C. § 6502(a)(1); 16 C.F.R. § 312.2.

747. The FTC promulgated regulations implementing Section 6502(b) of COPPA, including 16 C.F.R. § 312.2, which defines website or online service “directed to children” as one “that is targeted to children.” The regulation lists factors for determining whether an online service, or a part thereof, is directed to children and therefore subject to the statute’s “verifiable parental consent” requirement. These factors include:

subject matter, visual content, use of animated characters or child-oriented activities and incentives, music or other audio content, age of models, presence of child celebrities or celebrities who appeal to children, language or other characteristics of the Web site or online service, as well as whether advertising promoting or appearing on the Web site or online service is directed to children. The Commission will also consider competent and reliable empirical evidence regarding audience composition, and evidence regarding the intended audience.

16 C.F.R. § 312.2.

748. An online service is “directed to children” if it “targets children as one of its audiences - even if children are not the primary audience.”[36] Even if a website claims to target teenagers or adults, “in reality, [the] site may attract a substantial number of children under 13, and thus may be considered [to be] . . . ‘directed to children’ . . . .”[37]

749. Under COPPA and applicable regulations, Instagram is “directed to children” considering the following facts: (1) Instagram’s “audience composition” includes millions of users under the age of 13; (2) advertising that promotes Instagram and appears on Instagram is directed to children; (3) Meta’s design of the Instagram registration process allows children to use Instagram; [Redacted] (5) subject matter, characters, activities, music, and other content on Instagram are child-oriented; and (6) models and celebrities on Instagram are children and/or child-oriented.

[36] July 2020 COPPA Guidance, supra note 35.

[37] Id.