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FTC fines kids’ app developer HyperBeard $150K for use of third-party ad trackers

The U.S. Federal Trade Commission (FTC) today announced a settlement of $150,000 with HyperBeard, the developer of a collection of children’s mobile games over violations of U.S. Children’s Online Privacy Protection Act Rule (COPPA Rule). The company’s applications had been downloaded more than 50 million times on a worldwide basis to date, according to data from app intelligence firm Sensor Tower.

A complaint filed by the Dept. of Justice on behalf of the FTC alleged that HyperBeard had violated COPPA by allowing third-party ad networks to collect personal information in the form of persistent identifiers to track users of the company’s child-directed apps. And it did so without notifying parents or obtaining verifiable parental consent, as is required. These ad networks then used the identifiers to target ads to children using HyperBeard’s games.

The company’s lineup included games like Axolochi, BunnyBuns, Chichens, Clawbert, Clawberta, KleptoCats, KleptoCats 2, KleptoDogs, MonkeyNauts and NomNoms (not to be confused with toy craze Num Noms).

The FTC determined HyperBeard’s apps were marketed toward children because they used brightly colored, animated characters like cats, dogs, bunnies, chicks, monkeys and other cartoon characters, and were described in child-friendly terms like “super cute” and “silly.” The company also marketed its apps on a kids’ entertainment website, YayOMG, published children’s books and licensed other products, including stuffed animals and block construction sets, based on its app characters.

Unbelievably, the company would post disclaimers to its marketing materials that these apps were not meant for children under 13.

Above: A disclaimer on the NomNoms game website. 

In HyperBeard’s settlement with the FTC, the company has agreed to pay a $150,000 fine and delete the personal information it illegally collected from children under the age of 13. The settlement had originally included a $4 million penalty, but the FTC suspended it over HyperBeard’s inability to pay the full amount. But that larger amount will become due if the company or its CEO, Alexander Kozachenko, are ever found to have misrepresented their finances.

HyperBeard is not the first tech company to be charged with COPPA violations. Two high-profile examples preceding it were YouTube and Musical.ly (TikTok)’s settlements of $170 million and $5.7 million, respectively, both in 2019. By comparison, HyperBeard’s fine seems minimal. However, its case is different from either video platform as the company itself was not handling the data collection — it was permitting ad networks to do so.

The complaint explained that HyperBeard let third-party advertising networks serve ads and collect personal information in the form of persistent identifiers, in order to serve behavioral ads — meaning, targeted ads based on users’ activity over time and across sites.

This requires parental consent, but companies have skirted this rule for years — or outright ignored it, like YouTube did.

The ad networks used in HyperBeard’s apps included AdColony, AdMob, AppLovin, Facebook Audience Network, Fyber, IronSource, Kiip, TapCore, TapJoy, Vungle and UnityAds. Despite being notified of the issue by watchdogs and the FTC, HyperBeard didn’t alert any of the ad networks that its apps were directed towards kids, not to make changes.

The issues around the invasiveness of third-party ad networks and trackers — and their questionable data collection practices — have come in the spotlight thanks to in-depth reporting about app privacy issues, various privacy experiments, petitions against their use and, more recently, as a counter-argument to Apple’s marketing of its iPhone as a privacy-conscious device.

Last year, these complaints finally led Apple to ban the use of third-party networks and trackers in any iOS apps aimed at kids.

HyperBeard’s install base was below 50 million at the time of the settlement, we understand. According to Sensor Tower, around 12 million of HyperBeard’s installs to date have come from its most popular title, Adorable Home, which only launched in January 2020. U.S. consumers so far have accounted for about 18% of the company’s total installs to date, followed by the Chinese App Store at 14%. So far, in 2020, Vietnam has emerged as leading the market with close to 24% of all installs since January, while the U.S. dropped to No. 7 overall, with a 7% share.

The FTC’s action against HyperBeard should serve as a warning to other app developers that simply saying an app is not meant for kids doesn’t exempt them from following COPPA guidelines, when it’s clear the app is targeting kids. In addition, app makers can and will be held liable for the data collection practices of third-party ad networks, even if the app itself isn’t storing kids’ personal data on its own servers.

“If your app or website is directed to kids, you’ve got to make sure parents are in the loop before you collect children’s personal information,” said Andrew Smith, director of the FTC’s Bureau of Consumer Protection, in a statement about the settlement. “This includes allowing someone else, such as an ad network, to collect persistent identifiers, like advertising IDs or cookies, in order to serve behavioral advertising,” he said.

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FTC votes to review influencer marketing rules & penalties

Undisclosed influencer marketing posts on social media should trigger financial penalties, according to a statement released today by the Federal Trade Commission’s Rohit Chopra. The FTC has voted 5-0 to approve a Federal Register notice calling for public comments on questions related to whether The Endorsement Guides for advertising need to be updated.

“When companies launder advertising by paying an influencer to pretend that their endorsement or review is untainted by a financial relationship, this is illegal payola,” Chopra writes. “The FTC will need to determine whether to create new requirements for social media platforms and advertisers and whether to activate civil penalty liability.”

Currently the non-binding Endorsement Guides stipulate that “when there is a connection between an endorser and a seller of an advertised product that could affect the weight or credibility of the endorsement, the connection must be clearly and conspicuously disclosed.” In the case of social media, that means creators need to note their post is part of an “ad,” “sponsored” content or “paid partnership.”

But Chopra wants the FTC to consider making those rules official by “Codifying elements of the existing endorsement guides into formal rules so that violators can be liable for civil penalties under Section 5(m)(1)(A) and liable for damages under Section 19.” He cites weak enforcement to date, noting that in the case of department store Lord & Taylor not insisting 50 paid influencers specify their posts were sponsored, “the Commission settled the matter for no customer refunds, no forfeiture of ill-gotten gains, no notice to consumers, no deletion of wrongfully obtained personal data, and no findings or admission of liability.”

Strangely, Chopra fixates on Instagram’s Branded Content Ads that let marketers pay to turn posts by influencers tagging brands into ads. However, these ads include a clear “Sponsored. Paid partnership with [brand]” and seem to meet all necessary disclosure requirements. He also mentions concerns about sponcon on YouTube and TikTok.

Additional targets of the FTC’s review will be use of fake or incentivized reviews. It’s seeking public comment on whether free or discounted products influence reviews and should require disclosure, how to handle affiliate links and whether warnings should be posted by advertisers or review sites about incentivized reviews. It also wants to know about how influencer marketing affects and is understood by children.

Chopra wisely suggests the FTC focus on the platforms and advertisers that are earning tons of money from potentially undisclosed influencer marketing, rather than the smaller influencers themselves who might not be as well versed in the law and are just trying to hustle. “When individual influencers are able to post about their interests to earn extra money on the side, this is not a cause for major concern,” he writes, but “when we do not hold lawbreaking companies accountable, this harms every honest business looking to compete fairly.”

While many of the social media platforms have moved to self-police with rules about revealing paid partnerships, there remain gray areas around incentives like free clothes or discount rates. Codifying what constitutes incentivized endorsement, formally demanding social media platforms to implement policies and features for disclosure and making influencer marketing contracts state that participation must be disclosed would all be sensible updates.

Society has enough trouble with misinformation on the internet, from trolls to election meddlers. They should at least be able to trust that if someone says they love their new jacket, they didn’t secretly get paid for it.

Source: TechCrunch