On July 10, 2013, U.S. Representative John Duncan (R-Tenn.) and co-sponsor Ileana Ros-Lehtinen (R-FL) introduced H.R. 2645, the “Forbidding Advertisement Through Child Exploitation Act of 2013.”

The stated purpose of this short bill is to “prohibit providers of social media services from using self-images uploaded by minors for commercial purposes.”

Under the bill, a “social media service” is defined as “any online service that allows an individual to upload, store, and manage personal content in order to share the content with other individuals.”

Section 5 of the bill also defines the key term “self-image” as:  “with respect to an individual, an image that depicts the individual.”  The bill does NOT define the term “minor,” which most state laws define to mean under 18 years of age.

In his statement relating to the bill, Representative Duncan said that the purpose of the bill was to shield children from having their images used for commercial purposes, such as in paid advertisements after they “liked” a product, brand or store on the site. Press Release, “Duncan Introduces Bill to Protect Children Online,” July 10 2013.

The bill would prohibit a provider of a “social media service” from “intentionally or knowingly” using “for a commercial purpose a self-image uploaded to such service by a minor.”  The bill would also give the Federal Trade Commission authority to promulgate regulations.

The very broad definition of “social media service” may raise issues about the scope of the bill:  would a company’s contest held on its site that invited users to provide photos using the company’s product cause the company to become a provider of a “social media service”?  How would a company know whether someone is a minor?  Would the company have to “age-gate” the contest, much like sites subject to COPPA?

Note that COPPA, the federal Children’s Online Privacy Protection Act, defines a “minor” to be an individual under 13 years of age. The FTC’s expanded COPPA regulations went into effect on July 1, 2013.  See Final Approach:  FTC Issues COPPA Guidelines, Fulbright Briefing, May 6, 2013. 

The bill has been referred to the House Committee on Energy and Commerce.