ICO Publishes Age Appropriate Design Code of Practice for Online Products and Services accessed by Children

On 21 January 2020, the ICO published the Age Appropriate Design Code of Practice. The Code is available here.

Who does the Code apply to?

• The Code applies to information society services which are likely to be accessed by under-18s. The ISS does not have to be deliberately directed at children.
• This includes any online products or services (e.g. apps, programs, websites, games). This also includes Internet of Things (IoT) connected toys and devices – whether with or without a screen.
• The Code applies to ISS with an establishment in the UK OR those that are outside the UK (but target goods and services to, or monitor children in the UK).

What does the Code say?

The Code sets out 15 headline “standards of age appropriate design”:

• Best Interests: The best interests of the child should be a primary consideration when you design and develop online services likely to be accessed by a child.
• Data Protection Impact Assessments: You should undertake a DPIA before launching the product or service to assess and mitigate risks to the rights and freedoms of children.
• Age Appropriate Application: You should take a risk-based approach to recognising the age of individual users and ensure you effectively apply the standards in this code to child users. Either establish age with a level of certainty that is appropriate to the risks to the rights and freedoms of children that arise from your data processing OR apply the standards in this code to all your users instead.
• Transparency: The privacy information you provide to users must be concise, prominent, and in clear language suited to the age of the child.
• Detrimental Use of Data: You should not use children’s personal data in ways that have been shown to be detrimental to their wellbeing, or that go against industry codes of practice, other regulatory provisions, or Government advice.
• Policies and Community Standards: Uphold your own published terms, policies and community standards (including but not limited to privacy policies, age restriction, behaviour rules and content policies).
• Default Settings: Settings must be ‘high privacy’ by default (unless you can demonstrate a compelling reason for a different default setting, taking account of the best interests of the child).
• Data Minimisation: Collect and retain only the minimum amount of personal data you need to provide the elements of your service in which a child is actively and knowingly engaged. Give children separate choices over which elements they wish to activate.
• Data Sharing: You should not disclose children’s data unless you can demonstrate a compelling reason to do so, taking account of the best interests of the child.
• Geolocation: You should switch geolocation options off by default (unless you can demonstrate a compelling reason for geolocation to be switched on by default, taking account of the best interests of the child), and provide an obvious sign for children when location tracking is active. Options which make a child’s location visible to others should default back to ‘off’ at the end of each session.
• Parental Controls: If you provide parental controls, give the child age appropriate information about this. If your online service allows a parent or carer to monitor their child’s online activity or track their location, provide an obvious sign to the child when they are being monitored.
• Profiling: You should switch options which use profiling ‘off’ by default (unless you can demonstrate a compelling reason for profiling to be on by default, taking account of the best interests of the child). Only allow profiling if you have appropriate measures in place to protect the child from any harmful effects (in particular, being fed content that is detrimental to their health or wellbeing).
• Nudge techniques: You should not use nudge techniques to lead or encourage children to provide unnecessary personal data or turn off privacy protections.
• Connected Toys and Devices (IoT): If you provide a connected toy or device, ensure you include effective tools to enable conformance to this code.
• Online Tools: Provide prominent and accessible tools to help children exercise their data protection rights and report concerns.

What should businesses do?

There are five steps that businesses should take now to prepare themselves (as set out in the Code):

• Step 1: Implement an accountability programme
• Step 2: Have policies to support and demonstrate compliance
• Step 3: Train staff
• Step 4: Keep proper records
• Step 5: Be prepared to demonstrate compliance with the Code 

What happens now?

• The Code needs to be notified to the European Commission and laid before Parliament (in case there are any objections). This process will likely be concluded in July / August 2020.
• Businesses will then have 12 months to implement the changes from the date the Code takes effect. Based on the timescales above, we anticipate the Code will take effect around August/September 2021.
• The ICO will enforce the Code in line with their Regulatory Action Policy and may impose fines under the Privacy and Electronic Communications Regulations (PECR) and/or GDPR, depending on the nature of the breach.