#5. Child Online Registry and Do-Not-Market Mandate

 

What’s so iAWFUL? Dangerously exposes children’s email addresses while drastically restricting US advertisers’ ability to market to children.

 

Indiana’s Child Protection RegistryHB 1418

 

Indiana’s HB 1418 attempts to protect children from electronic advertisements containing “adult communications” by creating a “do not contact” list.  Once registered, no advertiser may advertise to children items “harmful to minors.”

 

So what is so iAWFUL?

 

The Federal Trade Commission has said that state-managed ‘do not contact’ lists were a danger to children, since data breaches and hacks could expose kids’ email addresses to sexual predators.  That actually happened in 2006 when Utah mistakenly exposed children’s email addresses collected in that state’s “do not contact” list.

 

HB 1418 prohibits advertising items “harmful to minors” to a child’s registered email address.  If an advertiser believed their product could be construed as “harmful to minors,” before sending any electronic advertisement, they would need to ensure that the advertisement did not go to an email listed on Indiana’s “do not contact” list.

 

HB 1418 does not define what “harmful to minors” is and does nothing to help advertisers understand what communications are affected.  Marketers and advertisers will struggle to determine whether their marketing messages or ads would be considered “harmful to minors.”

 

Should an advertiser want to send an email to a child on the “do not contact” list for an item determined to be “harmful to minors,” the advertiser must:

 

  • Contact the adult who registered the child;
  • Verify the age of the adult by collecting yet more personal information or inspecting government documents and records;
  • Determine whether the adult has legal authority to give consent for the child;
  • Obtain written consent from the adult to send the advertisement;
  • Record and notify the Indiana government of the adult’s consent.

 

HB 1418 allows for statutory damages. If damage to a child occurs from an advertiser’s communication, civil suits are available for the victim to recover.  However, HB 1418 creates a statutory fine of $10,000 for the first violation of the law and $25,000 for the second violation.  This means that even if no harm occurs, advertisers still pay.  For example, if an advertiser accidentally sends an email to 1,000 children, the advertiser could face over $1 million in statutory damages without a single showing of harm.

 

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