Does an E or E10+ Rating Mean a Game or App is “Directed to Children” for Purposes of COPPA?

Written by John Falzone, VP Privacy Certified
December 18, 2019

The Federal Trade Commission (FTC) recently requested comments on its implementation of the regulations under the Children’s Online Privacy Protection Act (COPPA). As the self-regulatory body that independently assigns age ratings for video games and mobile apps, and an FTC-approved Safe Harbor program under COPPA, ESRB was one of many to submit comments to the FTC. Our comments addressed several issues, none more important than the need to maintain the distinction between online services that are “child friendly” or “child ready” and those that are directed to children for purposes of COPPA.

Taking a step back, COPPA is triggered when either:

(i) the operator of an online service, like a website or app, has actual knowledge it has collected personal information from a child under 13 years old; or
(ii) the online service is directed to children under 13 years old (“Children”).

 

To determine whether an online service is directed to Children, the FTC considers “its 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 who appeal to children, language or other characteristics . . . , as well as whether the advertising promoting or appearing . . . is directed to children” and “empirical evidence.” These factors are considered in their totality.

Too often we have heard the argument that an ESRB age rating, specifically an E or E10+ rating means a game or app is directed to Children. As we did in our comments to the FTC, we write now to dispel that fallacy.

The ESRB E (Everyone) rating indicates the content of a game or app is generally suitable for all ages, and may contain minimal cartoon, fantasy or mild violence, or infrequent use of mild language. The ESRB E10+ (Everyone 10+) rating indicates the content is generally suitable for ages 10 and up, and may contain more cartoon, fantasy or mild violence, or minimal suggestive themes. Neither of these ratings, nor any of the other age ratings assigned by ESRB, however, indicate that a game or app is directed to Children for purposes of COPPA.

Indeed, ESRB rates numerous games and apps E or E10+ that are directed to a general or older audience. These include, for example, travel apps, maps and navigation apps, ride-sharing apps, sports news and entertainment apps, retailer apps, card games, puzzle games, flight simulators, and many others. Although those online services do not contain content that would be inappropriate for Children, and indeed in some cases many Children do use them, no one would argue they are directed to Children for purposes of COPPA.

To be clear, when assigning ratings, ESRB does not consider the intended or even actual audience of a video game or mobile app. Nor does ESRB directly consider any of the factors the FTC weighs under COPPA. Rather, when assigning age rating information, ESRB considers the presence, type, degree, and context of violence, blood, gore, language, suggestive themes, crude humor, simulated or actual gambling, drugs, alcohol, tobacco, nudity, and sexual content that may be included in a game or mobile app. ESRB’s Ratings Guide makes this abundantly clear.

Simply put, ESRB’s E and E10+ rating categories are not evidence an online service is directed to Children.

ESRB Privacy Certified is a privacy-focused compliance and certification program. We work with our member companies to navigate these sometimes-difficult issues, including to identify online service that are “directed to Children” for purposes of COPPA and to ensure those services comply with COPPA’s requirements. If you have any questions about our program, please reach out to us at [email protected]

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