Child Protection and Digital Content

Please use this fact sheet as a guide only; it does not constitute professional legal advice.

WEBSITE USE

Obtaining and Using Children’s Details

Asking children to register to use your site or using information they give you can cause
problems under Data Protection Act 1998. While the Act does not draw any distinction between
adults and children, the Information Commissioner has made it clear in a number of publications
that particular care should be taken when collecting information about children.
Websites which collect information from children need to have safeguards in place to ensure
that any processing is fair including ensuring that any notices are in age appropriate language
and clearly brought to the child’s attention.
It is not acceptable to ask for personal information in return for a prize or ask for information
about other people
The Act says a person must consent to the use of any personal information and there is a real
question as to whether a child can give that consent so require parental consent for anyone
under 16.
ICO says “If you need parental consent, you must have some way of verifying this. It will not
usually be enough to ask children to confirm their parents have agreed by using a mouse click.
If you need parental consent but decide that verifying the consent will involve disproportionate
effort, you should not carry out your proposed activity.” Methods of verifying consent might
include telephoning parents to verify consent or asking for a nominal credit card payment to be
made before the child can access the site.

Inappropriate content
While there are no specific laws about content for children except in relation to advertising (see
below) you may wish to monitor all content and complete a questionnaire developed by ICRA
(formerly the Internet Content Rating Association) ticking which of the elements in the
questionnaire are present or absent from your website. The broad topics covered are:
• The presence or absence of nudity
• The presence or absence of sexual content
• The depiction of violence
• The language used
• The presence or absence of user-generated content and whether this is moderated
• The depiction of other potentially harmful content such as gambling, drugs and alcohol
This generates a file containing labels linked to the content. Users, usually parents, can then
use filtering software to allow or disallow access to websites based on the information declared
in the label.

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Advertising
The Advertising Standards Authority has guidelines for advertising aimed at children (defined as
under 16s) which include advertising on websites. These say that ads aimed at, or featuring,
children should not: contain anything that is likely to result in their physical, mental or moral
harm. This means that children should not be encouraged to enter strange places or talk to
strangers; be shown in hazardous situations or behaving dangerously except to promote safety;
be shown using, or in close proximity to, dangerous substances or equipment without direct
adult supervision; or encouraged to copy any practice that might be unsafe for a child. Ads are
also banned if they exploit children’s credulity, loyalty, vulnerability or lack of experience. or
make them feel inferior or unpopular for not buying the advertised product.
It should be made clear to children that adult permission should be sought before committing to
costly purchases and some indication of price should be stated in ads for expensive toys and
games; advertisers should not try to minimise the cost by using phrases such as “only”. Ads
should not encourage “pester power” i.e. encourage children to make a nuisance of themselves
to parents in order to obtain an item or exaggerate what is attainable by an ordinary child using
the advertised product. Ads should not present children in a sexually provocative or sexualised
manner. There are also rules concerning the advertising of food and drink products to children.

Contracts
Under contract law, the general rule is that a person does not have capacity to enter into a
contract unless he or she is aged 18 or over, and any contract entered into can be voided by the
child until he or she is 18. An exception to this rule is where the contract is for 'necessaries',
which would include contracts for education and accommodation but not most items advertised
on websites.
This makes it very difficult to sue if a child does not pay for an item or service sold from your
site. It also may mean that a child can revoke any consent given by her, for example for the use
of her name or photo.

Moderating third party content such as chat groups, blogs or wikis

You are less at risk of an action for defamation or breach of copyright if you do not moderate
such content than if you do so long as you have a procedure to take offending content down
promptly on being notified of the breach. However, although legally safer, it may be unethical to
allow unmoderated content when dealing with children.
If you do moderate the site you are making yourself responsible for the content so need to
ensure that you have a foolproof and clear system to prevent and take down defamatory,
indecent or infringing material. The Home Office issued good practice guidance in December
2005 for the moderation of interactive services for children: http://tinyurl.com/dmmfoy
While the guidance does not make moderation compulsory, it states: "It is important for public
interactive communication providers to undertake a risk assessment of their own service and
the potential for harm to children in order to decide what safeguards are necessary, including
the use of moderation." and gives clear and readable guidelines for moderating content. The
guidance offers suggestions for the recruitment and training of moderators including consulting
the Criminal Records Bureau.
You may also wish to moderate content which, while not strictly unlawful, is distressing to
children such as chain letters which threaten dire consequences if the chain is broken.
Whether or not you actively moderate the site you should have a clear, easy and age
appropriate link on each page whereby users can report inappropriate content to you and a
disclaimer on each page stating that you are not responsible for third party content on the site.

TAKING AND USING FILM AND STILL PHOTOGRAPHS OF CHILDREN

Parental Consent and Model Release Forms

When shooting children under the age of 18, a model release with the parent or legal guardian's
signature should be obtained. Using film or photographs of a child without consent, even in
quite ordinary situations may be considered a breach of privacy. However this will depend on

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the use of the image -film of a child as part of an audience watching a conert would not be a
breach of privacy if you are just showing the whole concert but may well be if you extracted the
pictures of the child and used them to advertise the film.

Protection of Children Act 1978

Extra care must be taken when shooting and distributing images of children, especially where
innocent nakedness is involved. It is a criminal offence to take, permit to be taken, make,
possess, show, distribute or advertise indecent images of children. The word indecent should
be taken at its dictionary meaning; as a guide it means any images of children, apparently under
18 years of age, involved in sexual activity or posed to be sexually provocative.

Photography or Film of Children in Sport and Recreation Centres

Taking photographs of or filming children in sports activities, especially in the areas of
swimming, gymnastics and athletics, is becoming increasingly problematic. The Institute of
Sport and Recreation Management guidelines urge a complete ban on photography where
partly clothed children may be present. They suggest that in venues that allow photography,
photographers should request permission to take pictures and guarantee that they will not be
put to improper use. Guidelines can be found at
http://www.isrm.co.uk/information/270_photography_children.pdf

PCC Code of Practice

The Press Complaints Commission publishes a Code of Practice which contains useful
guidelines for photographing children.
The Code can be accessed on http://www.pcc.org.uk/cop/practice.html

Using Children as Models in Commercial Photography

According to UK law, a licence is required for all paid commercial photography involving
children of school age (under the age of 16). The licence is obtained from the Local Education
Authority (LEA) where the child lives. A separate licence for each child involved is needed, and
if they live in separate boroughs you need to apply for separate licences to each local authority.
Either the photographer or the client can apply for the licence, but not the model or model
agency. You should call the LEA to request a form, which will need to be signed by the parent
or guardian.
You may also be asked by the Local Education Authority to produce a disclosure certificate.
Standard disclosures contain details of all convictions on record, plus details of any cautions,
reprimands or warnings. If you are required to provide one,. call the disclosure helpline 0870 90
90 811 for more information or visit http://www.crb.gov.uk
Leave plenty of time when applying for a licence (approx. 21 days before your shoot, any longer
and you can complain to the Department of Health) note; some boroughs will issue six month
licences.

Defamation
If, by use of an image or by captioning you give an untrue impression which might affect the
subject’s reputation you could be guilty of defamation. For example, a photograph of a
miserable or bruised child should never be used to illustrate an article about abused children as
this could be defamatory of the parents and possibly also the child. The parents or guardians
must grant permission first and the picture should be used clearly captioned POSED BY
MODELS.

© 2009 Nicola Solomon, Consultant Finers Stephens Innocent http://www.fsilaw.com/ Solicitors

on behalf of Own-it. www.own-it.org

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