Few dispute that the law should protect the privacy of children. In a recent decision of the Supreme Court of Canada, the court held that the “[r]ecognition of the inherent vulnerability of children has consistent and deep roots in Canadian law” and that “[t]his results in protection for young people’s privacy” in several legislative areas.

This post doesn’t address what is socially acceptable or appropriate in terms of the collection of personal information from children or the use of that information for marketing. Instead, it focusses on some of the practical legal issues when dealing with children, personal information and marketing in Canada.

“We do not knowingly collect personal information from children under the age of 13.”

It has become boilerplate for organizations in Canada to deny that they knowingly solicit, collect or use personal information from children under 13. Why? The focus on the age of 13 is probably a product of two statutes:

COPPA. Canada’s southern neighbour has a lot of influence, particularly in respect of e-commerce. The Children’s Online Privacy Protection Act (United States) requires verifiable parental consent to the collection of children under the age of 13.

Quebec. COPPA isn’t the only reason to focus on the age of 13. Section 248 of the Consumer Protection Act (Quebec) prohibits commercial advertising directed at persons under 13 years of age. The Office de la protection du consommateur takes the position that this applies to websites as well.

Special Advertising Regulations

Marketers must also be aware of special advertising rules for children even where advertising is permitted.

Broadcast Code Regulations. Television and radio broadcasters in Canada agree to adhere to the Broadcast Code for Advertising to Children (under the age of 12) as a condition of Canadian Radio-television and Telecommunications Commission licences. This requires pre-clearing of the children’s advertising.

Advertising Standards Canada Requirements. In the online world, the Canadian Code of Advertising Standards applies. The Code provides that advertising that is directed to children “must not exploit their credulity, lack of experience or their sense of loyalty, and must not present information or illustrations that might result in their physical, emotional or moral harm.”

Identifying Children and Obtaining Consent

Modulating information and consent mechanisms is difficult enough.  However, it is complicated by the fact that the application of privacy principles tend to discourage the most obvious tool to identify children – asking the user for his or her age.

Difficulty in Obtaining Consent. In Canada, the Personal Information Protection and Electronic Documents Act (Canada) (PIPEDA) and its provincial counterparts requires meaningful consent to the collection, use, retention and disclosure of personal information. In order to obtain consent, the information must be presented and modulated in complexity to the developmental level of the child.

Identification Problem. Privacy advocates do not want to encourage the collection of dates of birth. However, without information on a year of birth, it is not possible to screen out the collection of personal information from children. In one case, a parent enrolled a child in a loyalty program. When the child started to receive credit card marketing materials, the parent complained but there was no practical way for the loyalty program to know the age of the person enrolling without asking.

There is no prefect solution. Instead the organization must carefully consider the target audience and modulate consent and the use of personal information based on reasonable expectations about the demographics of that target audience.

Binding Terms of Use and Contracting with Minors

In many cases, organizations attempt to incorporate consent to the collection, use, retention and disclosure of personal information into the terms of use of the website or mobile application. However, the law is complex relating to the capacity of a minor to enter into a contract and that law varies among Canadian provinces. In Ontario, for example, a person who is 18 years of age or more is presumed to be capable of entering into a contract (s. 2(1) of the Substitute Decisions Act, 1992). However, there is no presumption that a person under the age of 18 is capable of contracting. On the other hand, if necessaries are sold and delivered to a minor, the minor is required to pay a reasonable price (s. 3(1) of the Sale of Goods Act). “Necessaries” are vaguely defined as goods suitable to the minor’s condition and his or her actual requirements. Even in the case of non-necessaries, the contract with a minor may not be voidable if the minor has already received the benefit of the contract.

In British Columbia, a person is an “infant” until reaching the age of majority of 19 years (s. 1(2) of the Age of Majority Act). Section 19 of the British Columbia Infants Act, provides that a contract with an infant is not enforceable unless, among other things, it is affirmed on reaching the age of majority. However, that rule is not as blunt as it sounds, since the court may take into account the surrounding circumstances of the contract and whether any party has changed its position before fashioning a remedy.

Obtaining consent from a parent or requiring acceptance of terms of use from a parent is not necessarily the solution. In Ontario (and other common law provinces), a contract entered into by a parent on behalf of a minor may not be enforceable against the minor.

Helping Parents and Children

The Canadian Marketing Association has tips for helping parents with children’s marketing.  The Office of the Privacy Commissioner of Canada also has a great website for youth and parents.