Marketing to Children: one Europe?

Topic: Children

Who: Osborne Clarke’s survey across Europe

When: November 2007

Where: EU

Law stated as at: 15th November 2007

What happened:

A recent survey promoted by Osborne Clarke across 27 European countries shows how difficult it is for the marketing industry to follow a precise set of rules when it comes to marketing and advertising to children.  The reason for this is that a harmonised set of rules applicable in all the European countries simply does not exist.  The survey took place between October and November 2007 and covered 4 main areas:

1. Age when a child can consent to processing of their personal data without parental or guardian approval
2. Age when a child legally becomes an adult
3. Age until which advertising/marketing codes consider a person a child
4. Child obesity – Any new food marketing rule changes?

1. Age when a child can consent to processing of their personal data without parental or guardian approval

As far as the age of consent for processing of personal data is concerned, most of the polled European countries set the age at 18 years.  In some other countries, a lower age is regarded as the age when a child can understand what is going on and can generally be regarded as able to give valid “consent” without a parent or guardian having to give sign-off.
The UK and the Czech Republic for example regard children of only 12 years of age as able to give their valid consent in respect of processing of their personal data, for example for marketing purposes.

The situation generally can be summarised as follows:

• 18 years of age – (Belgium, Denmark, Finland, Italy, Latvia, Malta, Portugal, Serbia, Slovakia).
• 16 years of age – (France, Ireland, Macedonia, Sweden, Switzerland)
• 15 years of age – (Norway, Slovenia)
• 14 years of age – (Albania, Austria, Germany, Greece, Lithuania, Netherlands, Spain)
• 13 years of age – (Poland, Turkey)-NB this is in harmony with the US in the online context, where the Children’s OnlinePrivacy and Protection Act or “COPPA” requires  verifiable parental consent before any online collection of data from under 13s.
• 12 years of age – (Czech Republic, UK)

2. Age when a child legally becomes an adult

Harmony prevails in almost all of the European countries.  In most of them, a child becomes an adult at 18 years of age.  However, exceptions can be found where a child as acquired the status of “emancipate” to the extent of marriage.  In Italy and Malta, for example, a child may become an adult at 16 years of age; while in Turkey, children become adults at 19 years of age.

3. Age up to which advertising/marketing codes consider a person a child

The situation is still very much inconsistent across Europe on the age up to which marketing codes/laws regard people as “children”, despite for instance the introduction some time ago of the “TV Without Frontiers” Directive 89/552/EEC which contains specific provisions relating to children and the “Unfair Commercial Practices Directive” 205/29/EC which expressly forbids “including in an advertisement a direct exhortation to children to buy advertised products or persuade their parents or other adults to buy advertised products for them”.

Most European countries, once again, do not have legislation which specifically regulates this matter and in many cases nor does even a self regulatory code of advertising provide an answer.  In the Netherlands, the Self-Regulatory Dutch Advertising Code defines a child as any minor under 12; but the Dutch Advertising Code for Foodstuffs defines a child as anyone under 13.

The situation can be summarised as follows:

• 18 years of age – (Albania, Czech Republic, Denmark, Finland, Germany, Ireland, Latvia, Lithuania, Macedonia, Portugal, Slovenia)
• 16 years of age – (Malta, Sweden, UK)
• 15 years of age – (Slovakia, Turkey)
• 14 years of age – (Greece)
• 13 years of age – Netherlands for food marketing, Poland
• 12 years of age – (Netherlands for other marketing, Spain, Austria)
• NO SPECIFIC AGE: Belgium, France, Italy, Norway, Serbia, Switzerland)

4. Child obesity – Any new food marketing rule changes?

Despite apparently global child obesity concerns, only a minority of European states have recently taken steps to tighten rules concerning the advertising of foods. These are Albania, Czech Republic, Denmark, France, Italy, Malta, the Netherlands and the UK.

However, the proposed EU Audio Visual Media Services Directive which might enter into force in 2010, may bring a few changes in this area.  Proposals have been debated over the last few months and it appears that the Directive will in its final form state that “Member states shall encourage media services providers to develop codes of conduct regarding inappropriate audiovisual commercial communication, accompanying or included in children’s programmes, of food and beverages containing nutrients and substances with a nutritional or physiological effect, in particular those such as fat, trans-fatty acids, salt/sodium and sugars, excessive intakes of which in the overall diet are not recommended”.

Why this matters:

Even within individual states, there is often precious little consistency in minimum age levels for particular activities. In the UK for example, whilst the Information Commissioner’s Office regards children of 12 and over as generally able to give valid consent to processing of their data, the Direct Marketing Association’s Code of Practice forbids DMA members from collecting under 16s’ data online without parental consent.

Particularly given the terms of the forthcoming Audio Visual Media Services Directive and mounting concerns over for example the impact on children of violence in computer games and advertising for these products, isn’t it time that consideration was given, despite cultural concerns, to harmonising minimum age requirements in all areas where there are concerns for the effect of any commercial activity on children?