First complaint to the ICO filed against YouTube under the Children’s Code

Our client Duncan McCann has submitted the first ever complaint to the Information Commissioner’s Office (ICO) against global tech firm, YouTube, for breaching the recently implemented Children’s Code or Age-Appropriate Design Code (AADC).

The complaint says that, at a minimum, the location, viewing habits, and preferences of up to 5 million UK children are systematically recorded by the internet giant YouTube, breaking Data Protection laws and breaching industry standards designed to protect young people under the age of 13.

The complaint is supported by Duncan McCann’s employer 5Rights, the renowned international charity and advocacy group, and Hausfeld assisted in drafting the complaint.

The Children’s Code

The Children’s Code or Age-Appropriate Design Code (AADC) is the ICO’s own set of child protection standards for online services and came into force in September 2021. It offers clear guidance of how young peoples’ data should be handled and how service providers should interact with children to comply with the law.

The complaint against YouTube

With 89% of all children and young people (3-17) in the UK using YouTube [1], it is the most used online platform by children in the UK. The gathered data is used to promote targeted content and may, potentially, be stored indefinitely.

Duncan McCann, a parent of 3 young children, has long campaigned against the misuse of young peoples’ data by Big Tech. His complaint states that since at least 25th May 2018, when the Data Protection Act came into force, YouTube has failed - and continues to fail - to lawfully process the personal data of children under the age of 13. The complaint specifically says YouTube is in breach of EU General Data Protection Regulation ((EU) 2016/679) (EU GDPR) and Data Protection Act 2018 (DPA 2018) as informed by the AADC. [2]

YouTube’s own terms of service say that: “You may use the service if you are at least 13 years old”. The platform also offers a separate and more protective app “YouTube Kids”. However, the available evidence shows that children from 3 to 13 are regularly using the main platform without any form of parental consent. [3]

Duncan McCann says that YouTube should change the way the platform operates to ensure it is compliant with the law:

“Imagine YouTube as an adult stranger following your child ‘online’ with a virtual clipboard recording everything they do. That is what is happening every day. They are doing it with up to 5 million UK children, resulting in an enormous amount of personal information being gathered. Never mind it being against the law, it is a massive, unlicensed, social experiment on our children with uncertain consequences. YouTube should change the design of their platform and delete the data they have been gathering unlawfully from under 13s.”

Luke Streatfeild, Partner at the London law firm Hausfeld: 

“The mere act of taking and analysing data from children under 13 without specific parental consent is unlawful. We are calling on the Information Commissioner to enforce the law and its own industry standards.”

The ICO can also impose a ‘stop now’ order and issue fines, which can be up to £17.5m or 4% of a firm’s annual worldwide turnover, whichever is higher.

The complaint also challenges the ICO to consider whether the machine learning algorithms, that are trained on unlawfully gathered data, should be rolled back or even deleted.

The complaint was funded by global foundation Luminate


The Guardian

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[1] Source: OFCOM Children & Parents; media use and attitudes report 2022.
[2] Specifically Standard 7 which requires that settings on online services must be “high privacy” by default, Standard 8 which requires that only the minimum amount of personal data should be collected and retained and Standard 12 which requires that profiling should be “off” by default. All of these must be followed unless there is a compelling reason not to that is in the best interests of the child.
[3] Ofcom data shows that, in 2021, YouTube was the app or site most used by children aged 3-17 (89%), ranging from 84% of 3-4s to 90% of 5-17s. Further, whilst Google offers YouTube Kids, that same Ofcom data shows that only a minority of YouTube users aged 3-4 used the YouTube Kids app exclusively (40%); this figure falls to 33% of users aged 5-7 and 18% of users aged 8-11.