1.1 What are “terms of use”?

Also known as “terms and conditions” or “terms of service,” they’re the rules that the user must agree to in order to use a platform. Terms of use constitute a legally binding document that describes your expectations toward users as well as your obligations as an operator. In most cases, the document is not required by law; however, it helps release you of certain liabilities, thus protecting your company from potential litigation.

1.2 What must terms of use include?

While their content will vary based on the features offered by the platform, terms of use normally cover the following:

• User rights and responsibilities
• Operator rights and responsibilities
• A link to your privacy policy
• Your policy regarding cookies and other tracking tools
• Intellectual property on your platform
• Procedures in the event of changes to your terms of use

Participatory platforms must address user-generated content in their terms of use, while paid services must provide information about their market activities. For more information, see our recommendations.

1.3 Where should terms of use be posted?

In general, terms of use are posted in the same place as the privacy policy, i.e. at the bottom of each web page (for a website) or in the descriptive text on the app’s home page. You can also post them in the parents’ section.

While legally required in the European Union and France, terms of use are not required by law in Canada, United States or Australia.

EUROPEAN UNION & FRANCE

The Directive on Privacy and Electronic Communications (also known as the E-Privacy Directive) (European Union) and the Loi pour la confiance dans l’économie numérique (Law for Trust in the Digital Economy) require a “legal notice” whose purpose is to inform the user about the platform’s operator.Legal notices must be accessible from the home page and include:

• Company information and coordinates (name, legal form, business addressor registered office, email address, telephone number)
• Person responsible forpublication
• Web host’s contact details: name, denominationor company name,address andtelephone number
• France: CNIL simplified declaration number for the collection of personal information
• Cookie policy

Various other conditions apply to commercial sites. Consult France’s civil service website for more information:

• Official French civil service website: Quelles sont les mentions obligatoires pour un site web? (in French only)

• Directive on Privacy and Electronic Communications

App stores do not require mobile applications to post terms of use.

The leading Canadian self-regulatory bodies make no mention of terms of use.

• While terms of use are not obliged by law in Canada, United States and Australia, we strongly recommend all platforms to draft terms of use adapted to their product or service, since they constitute valuable legal protection for your company.
• Terms of use are an important legal document that must be adapted to each product in order to protect your company: consult a lawyer.

• For non-participatory platforms: in the interests of making browsing easier, your terms of use can be worded so as to have users implicitly accept them without being obliged to perform a specific action like checking a box or clicking “Accept.” For example:

Use of this platform is contingent upon compliance with these terms of use. By accessing, browsing and/or using this platform, you acknowledge having read the terms of use and agree to comply with them as well as abide by the applicable laws and regulations.

• As far as possible, present your terms of use in language that can be easily understood by your readers or their parents.

• Terms of use normally include the following:
• Contact information of the company responsible for the platform
• User rights and responsibilities
• Operator rights and responsibilities (personal data protection and security measures, limitation of legal liability, etc.)
• System requirements
• Description of your use of cookies and other tracking tools
• A link to your privacy policy
• Intellectual property on your platform (your own content, third-party content licenses, etc.)
• The applicable laws in the event of litigation (e.g. “These terms of use are governed by federal Canadian legislation and applicable provincial statutes”)
• Your contest management policy, if applicable
• Date of most recent update and terms of use version number (e.g. “Version 2.4. Last updated: June 12, 2015”)
• Procedure in the event of changes to the terms of use (e.g. “Should these terms of use be amended, users will be notified of the new terms within 10 working days of their coming into effect”)

• In the interests of transparency, make all previous versions of your terms of use accessible to users.

• For participatory platforms, participation can be made contingent upon compliance with the terms of use. For example, during the account creation process, post a dialogue box with a statement to be checked, such as “I have read and accept the terms of use.” This is a precaution that can help prevent certain kinds of violations.

• The terms of use of a participatory platform must include:
• A reminder of the rules of conduct between users as well as what constitutes “unacceptable” content (e.g. “Content should not be illegal, obscene, defamatory, threatening, infringe upon intellectual property rights, violate privacy or be otherwise injurious or objectionable”)
• A link to your digital code of conduct
• A request for license to use content (e.g. “By sharing the content on this platform, you grant [company name] license to…”)
• A legal disclaimer expressing disaffiliation with content (e.g. “Despite our efforts to moderate the content posted on this site, we do not endorse any statements made by our users”)
• An arrangement through which you reserve the right to terminate a user’s account, remove any content displayed through that account and restrict that user’s access to the platform

1.1 What’s a newsletter?

Newsletters, whose content can vary from informative to promotional to a mixture of both, are a means of maintaining regular or occasional contact with users.

From the moment a company draws on its database to contact its users, communications are considered “commercial electronic messages” in the eyes of the law, even if their content is purely informative.

1.2 Are commercial electronic messages governed by law?

Commercial electronic messages are governed by anti-spam legislation. These laws cover the general public without specific provisions for children.

1.3 What’s the difference between “commercial electronic messages” and “spam”?

A commercial electronic message is a message whose purpose is to encourage participation in a commercial activity by transmitting information on the product (i.e. the platform).

Spam is an unsolicited commercial electronic message.

In general, to avoid having your newsletter considered as spam, you must meet the following criteria (see Regulations for further details):

1. Obtain parental consent
2. Identify your company properly in the message
3. Include an unsubscribe mechanism

1.4  Consent and commercial electronic messages (opt-in/opt-out)

Users must consent to receiving commercial electronic messages. There are three types of consent:

• Express, explicit or positive (opt-in): the user must take concrete action to subscribe to the mailing list (e.g. complete a subscription form). Consent is valid until the user makes an unsubscribe request.
• Implied, tacit or inferred: based on an existing business relationship with the user (e.g. if the user has contacted you to request information). Valid for a limited period: you must obtain express consent before this period expires.
• Negative or passive (opt-out): users must take action to inform the sender that they do not wish to receive commercial electronic messages.

Generally speaking, express consent is preferred. Note that this entails providing separate consent to the sender of each commercial electronic message. Lines that “bundle” consent (e.g. “Check this box to receive our newsletter as well as those of our partners”) are therefore to be avoided.

1.5 Unsubscribe mechanisms

Commercial electronic messages must offer users the means to cancel their subscription. The unsubscribe mechanism must be stated in clear terms, be visibly prominent and easy to use: it shouldn’t involve more than two steps. For example:

• An “unsubscribe” link at the bottom of the newsletter, which opens a window where the user can check to confirm cancellation of their subscription
• A text message containing the word “STOP”

Each country has regulations governing commercial electronic messages. While there are minor variations, the legislation is essentially similar and aims to protect the public against spam by providing a legal framework for online commercial transactions. Note that anti-spam laws do not contain specific provisions for children. Generally, whenever you contact your users and/or their parents, your message must touch on the following.

1. User consent: include a statement specifying that consent can be revoked at any time.
2. Identification: you must clearly identify yourself and provide a method through which the recipient can readily contact you.
3. Unsubscribe mechanism: unsubscribe requests must be processed promptly.

CANADA

Canada’s Anti-Spam Legislation

CASL applies to all commercial electronic messages (email, instant messaging, SMS, etc.) sent to Canadians. Its approach is based on obtaining the user’s express consent. Implied consent is acceptable in some cases but is generally time-limited. You must be able to show how you obtained consent from each user.

**QUÉBEC**

Québec’s Consumer Protection Act prohibits commercial advertising directed at children under 13 years of age, barring certain exceptions prescribed by regulation. Pay close attention to the content of your commercial electronic messages to avoid having them considered as advertising. For example, you cannot promote a subscription to your platform in a newsletter aimed at Québec children. For more information, see Backgrounder Embedded Advertising.

Additional information:

• Government of Canada
• Office de la protection du consommateur: Advertising Directed at Children under 13 Years of Age

UNITED STATES

1. The CAN-SPAM (Controlling the Assault of Non-Solicited Pornography And Marketing) Act applies to emails that promote a product or service, including web platform content. Its approach is based on negative consent, meaning that a company can send email offers until the recipient (the user) signals that they no longer wish to receive them. Email offers must be clearly identified as ads.

2. The Children’s Online Privacy Protection Act (COPPA) provides that while there are some exceptions for mobile apps, in most cases, if you want to send push notifications, you need to obtain parental consent. This is because the contact information gathered from the mobile device to send the alerts constitutes personal information.

Additional information:

• CAN-SPAM Act: A Compliance Guide for Business
• Federal Trade Commission, Complying with COPPA: Frequently Asked Questions

EUROPEAN UNION & FRANCE

The Directive on Privacy and Electronic Communications (also known as the E-Privacy Directive) advocates express consent whereby users must signal their consent prior to receiving your commercial electronic messages. Implied consent is acceptable provided each message contains an unsubscribe mechanism.

Additional information:

Directive on Privacy and Electronic Communications

AUSTRALIA

The Spam Act targets commercial electronic messages that originate or are commissioned in Australia or are sent from an “Australian link.” It is based on express consent but accepts implied (inferred) consent under certain conditions. Companies must be able to show how they obtained the consent of each user they contact.

Additional information:

Australian Government, Spam Act 2003: An overview for business

Apple App Store/Amazon Appstore

• You must obtain the user’s consent to send push notifications.
• It is prohibited to use push notifications or real-time alerts to send spam, advertisements or promotional offers.
• Do not abuse push notifications: send them at a reasonable frequency.

Additional information:

Amazon Distribution and Service Agreement

Apple Developer Guidelines

The Canadian Marketing Association lays the groundwork for industry self-regulation through its Code of Ethics and Standards of Practice. The CMA states that mailing list subscription must comply with the requirements of Canada’s Anti-Spam Legislation:

• Emails and text messages: do not send marketing communications without first obtaining the recipient’s express or implicit consent.

• Internal do-not-contact list: at the consumer’s request, promptly add email addresses and cell phone numbers to your internal do-not-contact list and cease all marketing to those addresses/numbers within 10 working days.

Additional information: consult section N4 of the Code of Ethics and Standards of Practice

• Mailing list subscription involves collecting the child’s email address, which is a form of personal information. Since this is considered sensitive information, you are advised to obtain parental consent before starting to send commercial electronic messages to a child.
• Always favour express consent: it’s the most transparent form and remains valid until the user decides to unsubscribe.

• Indicate the frequency of your mailouts or messages so that users clearly understand what they are consenting to (e.g. say whether your newsletter is monthly, weekly or daily).

• If possible, allow users to define the frequency with which they receive your messages.

• Clearly identify your company in each message (contact info and physical address).

• Your unsubscribe mechanism must be simple and efficient: one click should be all it takes to cancel subscription to a mailing list.

• Send an automated unsubscribe confirmation message.

• If you issue a range of communications (e.g. weekly newsletter, occasional notifications for special events, etc.), you can create a “consent menu” where users select the types of messages they wish to receive.

• *In Québec, commercial advertising aimed at children under 13 years of age is against the law, barring certain exceptions prescribed by regulation. Messages to Québec children cannot therefore contain promotional offers, advertisements or self-promotion for products or services that are attractive to children. Messages containing advertisements are strictly destined for parents.

• *United States: Careful! Some states have their own anti-spam legislation that diverges from the federal framework.

1.1 Seeking user feedback through surveys

Surveys generally aim to elicit user preferences and attitudes toward a range of topics. When surveys are presented as games or quizzes, children might respond just for fun; they might also respond in exchange for some form of compensation — for example, an amount of virtual currency that can be used on the platform.

1.2 How are survey data used?

Data gathered through surveys are used in different ways, based on the objectives of the party commissioning the survey, e.g. the platform’s operator or business partners.

Surveys can be used to develop a platform in a direction that better aligns with the interests expressed by respondents. For example, a survey may seek to find out what themes or features children would like to see on the platform.

Market research firms and/or business partners can pay to have their surveys presented to users of a given platform. Afterwards, marketers will apply the data derived to different business strategies. The editor of a magazine aimed at preteens could, for example, launch a survey about pop culture (fashion trends, music groups, etc.) to better inform the magazine’s editorial content and marketing.

If you collect personal information (name of city, email address, etc.) through a survey, be sure to consult Backgrounder Collection of Personal Information.

When you do business with a partner, your survey can become a form of advertising. Consult Backgrounder Embedded Advertising.

Mobile app stores have no particular regulations regarding user surveys.

Self-regulation does not address the question of user surveys.

Be transparent with regard to your use of the data collected through surveys:

• Explain how you use survey data in your privacy policy as well as in the parents’ section.
• Your explanation of how you use respondents’ data must be presented in clear and comprehensible terms. For example, in the survey window, post a short text to the effect of “We use your answers to improve the user experience and develop fun new games!” followed by a link to your privacy policy.
• If the survey causes the child to interact with third-party content (which means that the survey is the initiative of a business partner), indicate this clearly.

• If you need to collect personal information, limit yourself to what is strictly necessary.

• Delete personal information once you no longer need it.

• Whenever possible and in a spirit of respect for individual privacy, dissociate survey responses from personal information.

• Avoid doing business with business partners who direct the user away from your platform — for example, requiring the user to click on a link to the partner’s site to complete the survey.

• Also avoid doing business with partners who set out to recruit respondents with offers of compensation such as “Complete this short and fun survey in exchange for 10 units of virtual currency exchangeable in the virtual world!” This form of advertising is hard for children to detect and in Québec, is prohibited under the Consumer Protection Act, apart from a few exceptions prescribed by regulation.

1.1 What’s a contest?

A contest entails the drawing of one or more prizes from among the contestants. Companies are legally entitled to stage contests, provided they meet certain conditions. Above all, you must comply with the applicable regulations governing the jurisdictions where your contest is held. For example, producers who do not wish to translate their promotional materials into French can open their contests to residents of Canada with the exclusion of Québec residents.It is important to distinguish between a contest and a lottery. The latter is a game of luck where players must purchase their chance to win a prize. Lotteries are operated by the government of a given region and as such, are strictly regulated.
To avoid being considered an “illegal lottery,” a contest cannot combine more than two of the following three elements:

• Valuable consideration or participation costs (e.g. mandatory product purchase)
• Winner determined by random chance
• Prizes to be won

For example, eliminating the element of random chance makes the contest partially skill-based (e.g. by requiring contestants to correctly answer a general-knowledge question or mathematical problem).

1.2 Contests and children

Generally speaking, few specific provisions exist for children beyond the fact that the prize cannot consist of a product that is illegal to sell to minors (alcohol, tobacco, etc.).

While parental consent is not a legal requirement for contest participation, it is nonetheless strongly recommended.

In Québec, you must comply with the principles of the Consumer Protection Act prohibiting commercial advertising directed at children under 13 years of age, barring certain exceptions prescribed by regulation. When the prize is a product or item of particular interest to children (e.g. a toy), you must be very careful about how you choose to promote the competition.

1.3 Contests that employ user-generated content

A contest that features user-generated content — i.e. that requires contestants to submit content they create in order to participate — raises the question of rights and licenses. If you intend to use such content on your website or in your newsletter, the contestant must grant you certain permissions.

In Canada, for example, copyright involves two kinds of rights: economic rights, which include the right to use the work; and moral rights, which are linked to authorship. To authorize you to use their content for promotional purposes, participants must assign you their economic rights or grant you a user license and waive their moral rights.

You can obtain some of these authorizations directly through the contest rules; others may require a written signature. Seek the advice of a legal professional to help you deal with the question of user rights and licenses.

1.4 Personal information and spam

Some contests require participants to disclose personal information. Be sure to comply with applicable laws on the collection of personal information. Similarly, if you promote your contest by email or text messaging, you must abide by regulations governing commercial electronic messages.

You must comply with the applicable laws of each jurisdiction where your contest is open. Note that the rules can differ between provinces or states within the same country.

CANADA

Criminal Code and Competition Act

The legal apparatus that oversees competitions is the same across Canada except in Québec, where the Act Respecting Lotteries, Publicity Contests and Amusement Machines also applies (see below).

• Pursuant to the Criminal Code, you cannot require contestants to pay money or other valuable consideration (e.g. product purchase) as the sole condition for participation. Offer a “no purchase necessary” entry option that offers precisely the same chances of winning as all other modes of participation.

• The Criminal Code requires that winners be selected using a method other than pure chance. Accordingly, you must include a “skill-testing question” in the entry form — for example, a simple mathematical equation or a general knowledge question. Only participants who answer the question correctly will be eligible for the prize draw.

• You must obtain a waiver of moral rights and the transfer of economic rights or a license to use any content generated by a participant for promotional purposes (e.g. posting user content on your site’s home page).

• You cannot unduly delay distribution of the prizes.

• Other information required pursuant to the Competition Act include the approximate value of the prizes, the number of prizes, the regional allocation of the prizes, the chances of winning and any other important information relating to the chances of winning.

Additional information:  Competition Bureau – Guidelines: Promotional Contests

***QUÉBEC

1. The Act Respecting Lotteries, Publicity Contests and Amusement Machines and Rules respecting publicity contests

When the contest is open to Québec residents, you must:

• Notify the Régie des alcools, des courses et des jeux within the stated deadline; pay the required fees; and include obligatory legal notices in the contest rules pursuant to the Rules respecting publicity contests (e.g. the contest entry deadline, a description of the method of awarding the prizes, the number and a detailed description of the prizes offered along with the value of each prize, and the place, date and precise time the prizewinner will be named).

• Display contest rules and advertisements in French.

Certain requirements may vary depending on the total prize value. For example, when the total prize value exceeds $100, the promoter must pay the required fees and include obligatory legal notices. When the total prize value exceeds $1,000, the promoter must also notify the Régie that a contest is being held and file the prescribed form. If the total prize value exceeds $2,000, the promoter must file the text of the rules prior to the start of the contest as well as a written report after the prizewinner is named.

2. Consumer Protection Act

Québec’s Consumer Protection Actprohibits commercial advertising to children under 13 years of age on all media platforms, barring certain exceptions prescribed by regulation. This law governs the promotion of contests with children.

Apart from products that cannot legally be sold to children, there are no a priori restrictions on the prizes your contest offers. To prevent your contest from being considered as a commercial advertisement directed at children, consider the relationship between the following three factors:

1. The nature of the advertised prize (is it particularly attractive to children?)
2. How the contest is presented (is the focus on the contest itself or the prize?)
3. Where the contest is promoted (is there a simple mention on the home page, or is the message “hammered home” to children throughout the site?)

The nature of the prize is crucial: if it is a “children’s product” — i.e. something attractive to young audiences like a toy or platform subscription — you must be very careful in how you promote your contest. The contest must not be an advertising tool for a product intended for children. Contest promotion should focus on the competition itself rather than on the prize/product. Allusions to the product and brand should be discreet.

An example of good practices Your youth website focuses on plants and wildlife. You launch a contest where you ask children to submit a text about their favourite animal based on information from your site. The winners will receive four tickets to the Museum of Nature. Your promotional materials emphasize the pleasure of using new knowledge about wildlife (“Show us your skills as a biologist!”). The logo and name of your commercial partner — for example, the Museum — are discreetly displayed at the bottom of the ad.

For any questions, contact the Office de la protection du consommateur and refer to Backgrounder Embedding Advertising.

Additional information:

Régie des alcools, des courses et des jeux: Publicity Contest Notice

Office de la protection du consommateur: Advertising Directed at Children under 13 Years of Age

UNITED STATES

Contests are governed by an array of federal and state laws. Generally speaking:

• A competition must have official rules.
• If you offer different entry procedures, the opening and closing dates must be the same for each (e.g. entries postmarked with the closing date must be accepted).
• Winners cannot be charged any fees for claiming their prize.

There is an important distinction to be made between a “contest,” where a skill-testing question is involved in determining the winner, and a “sweepstakes,” where the winner is selected at random (e.g. through a draw).

For a contest:

• Winner selection must be based on skill.
• You can charge contest entrants a fee or require them to purchase a product, but be careful: not only will you need a permit, but you must also be sure to comply with rules that can differ between states.

For a sweepstakes:

• You cannot require entrants to purchase a product or other valuable consideration to participate. Adopt a “no purchase necessary” entry option.
• Allentry methodsemployedmust provideentrants withthe same chances of winning.

EUROPEAN UNION & FRANCE

The Unfair Commercial Practices Directive is fairly broad with regard to contests. The Directive states that all contests must be organized lawfully. Accordingly, it provides a list of commercial practices considered “misleading” or “aggressive” that are to be avoided when organizing a contest. For example, it is considered dishonest to launch a contest and state that prizes can be won without awarding the prizes described.

Unfair Commercial Practices Directive

AUSTRALIA

Contests are the responsibility of the states and territories, which means that regulations vary across the country. Australia is flexible with regard to contests:

• You have the right to require that participants purchase a product or service in order to enter the contest.
• Competitions that do not determine the winner based purely on chance do not require licenses (e.g. a drawing competition).
• Contests based on chance may require a license in certain states.

Additional information:

Australian Government: Gaming (gambling) authorities

The Apple App Store requires official rules for sweepstakes and contests to be presented in the App, clearly indicating that Apple is not a sponsor or involved in the activity in any manner.

Additional information

Advertising Standards Canada recommends that you:

• Collect only the information sufficient to determine the winner in contests, games or sweepstakes-type of advertising to children.
• Limit the advertiser’s right to deal with anyone other than the parents or guardians of children who win a promotional contest, game or sweepstakes.

Additional information

The Canadian Marketing Association states that the marketing agent can collect personal information from children for contests without needing to obtain explicit parental consent, provided that the agent:

1. collects only the amount of personal information needed to determine the winner
2. communicates only with the winner’s parent or guardian
3. does not retain personal information after the contest
4. only uses personal information to determine the winner
5. does not transfer personal information or make it available to a third party

Contest rules must be presented in a manner that is clear, visible and easy to locate, read and understand. The rules must also continue to be available for a reasonable period after the contest closes.

Additional information