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Context: why I am asking this

Recently the network Acceptable Usage Policy was changed. As a result of those changes now it is technically possible to include what the policy defines as "Sexually Explicit Material" in a post if required provided that falls within a reasonable interpretation of a Network site’s scope and purpose.

This prompted some site to wonder if some additional guidelines are needed - hopefully before some troll thinks it would be funny to start asking "identifications question with pictures".

During these arguments every now and then someone mentions that the age requirement for the network is technically 13 years old (16 in Europe). And most of the time someone steps in to point out that "13 years old is only the requirement for an account and it is only for data-process / GDPR related legal issues".

The actual question

The network TOS section about Age states that:

You must be at least 13 years old to access or use the Network or Services, including without limitation to complete a Stack Overflow account registration. By accessing or using the Services or the Network in any manner, you represent and warrant that you are at least 13 years of age. If you are under 13 years old, you may not, under any circumstances or for any reason, access or use the Services or Network in any manner, and may not provide any personal information to or on the Services or Network (including, for example, a name, address, telephone number or email address).

Emphasis mine. For sake of simplicity I removed the section about Europe.

Notice the wording: it says that you must be 13 years old to use the Network and that includes (but it is not limited to) registering an account. It also says that any use of the network is considered a warrant that you are at least 13 years old.

Let's forget the legal issues here (I don't know if a ToS would still be binding for anonymous users who browse the site) but the intent that I read in these words seems clear: You should be 13 years old even to be able to browse the site in the first place. Registering an account was never part of the requirement
While this may seem extreme, please remember that technically the site collects PII even for anonymous users (just think about ads) so it would not seem illogical to think someone put a "legal net" in place to prevent any issue.

My question is very simple: I just request the company to clarify if this interpretation is correct so that this misunderstanding can be cleared.

Note: before someone points out. Yes, I know that "no one knows you are a dog on the internet" and therefore there is no real way to block any younger user from using the site. I am just trying to see if legally speaking the network can claim that any user under 13/16 years old is in violation of the ToS.

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    I mean, Yes, why wouldn't it? isn't that the purpose of the "access or" here? "access or use the Network or Services"? There's nothing in the text that limits the age limit to account registration.
    – Kevin B
    Commented Jan 29 at 16:56
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    I'd guess it's a CYA statement more than anything. As far as I'm aware, the only thing they actually care about is account creation since laws like COPPA and GDPR are primarily interested in your PII being stored when underage without parental consent. COPPA specifically applies to "websites or online services directed to children under 13" so this statement makes it explicit that the platform is intended for users 13 and older to avoid falling into that category.
    – Catija
    Commented Jan 29 at 16:57
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    "You should be 13 years old even to be able to browse the site in the first place." That's how I think they intent it, yes. Perhaps one day there'll be one of those "please confirm you're of legal age" buttons on 13+ sites such as SE that 18+ sites are already famous for. Policy for moderators on what to do when you encounter someone claiming to be less than 13 years old is quite clear.
    – Mast
    Commented Jan 29 at 17:14
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    @KevinB I am already pretty sure that they ToS should indeed be taken as a minimum age of 13 being a requisite for even browsing the site, but still this is a point that people love to nitpick about, saying that "13" is just the age requirement for registering an account. Simply put: I am trying to get a canonical reference to point them to every time someone post those incorrect information again. Or even someone telling me they are right, mind you: I am perfectly fine with both outcomes - I am just annoyed with the constant argument.
    – ꓢPArcheon
    Commented Jan 29 at 17:35
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    I'm glad you asked this question. I feel like the intent might have been to prevent edge cases like underage unregistered accounts or anonymous suggested edits, but the actual wording seems to suggest that an underage user wouldn't even be able to read the legal text, which is on the site. Of course, even if we assume that everyone underage abides by the legal text (ha!), they could still access the content through the data dumps, for example.
    – Laurel
    Commented Jan 29 at 18:03
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    It's interesting, though... this isn't a change as far as I'm aware. The policy as I understood it for sexually explicit content was generally the same as the profanity policy... dependent on the site and scope of that site. So I'm not sure why that Arqade question is framing this as a change.
    – Catija
    Commented Jan 29 at 18:44
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    I mean, that’s for the communities per site to decide, isn’t it?
    – Kevin B
    Commented Jan 29 at 19:16
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    @SPArcheon I guess, technically, yes it's a change but it's pretty clear that the changes were made to bring the policy in alignment with actual practice rather than to allow something that was prohibited previously. I don't have time to check but I would be interested to know when the clause was added originally or what it stated prior to the earlier version. Legal often isn't aware of the meta policy when they write some of that stuff so this feels like an indication that the T&S team is actually helping legal create informed policy.
    – Catija
    Commented Jan 29 at 19:21
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    @SPArcheon I would interpret the AUP as the very bare minimum legal ground rules. Most things that are "not allowed" here are not allowed by way of community consensus and the COC, not the AUP. The AUP is absolutely not comprehensive. I think people who are reading into it ways that their sites are going to change as a result are mistaken.
    – Bryan Krause
    Commented Jan 29 at 21:08
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    @BryanKrause: Yep. If anything, the AUP changes should be read as delineating the stuff that isn't allowed anywhere on the network, rather than meaning that certain stuff is allowed even if a site's community doesn't want it. Individual sites can generally choose to have stricter/additional rules beyond the network-wide rules – they just can't allow stuff forbidden by the existing network-wide rules.
    – V2Blast
    Commented Jan 29 at 23:04
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    SE is a place where generally an attempt has been made to avoid outlining each and every rule if there's no need to have it. Non-existence of a rule doesn't mean it's absolutely allowed; it merely means that it may be but to take the general sentiment of the rules that do exist and make a guess about whether you think what you want to do is OK... or ask. Writing down rules may seem important - and it can be - but I've found that having too many written rules can lead to exactly this issue - assuming something is allowed merely because there's no prohibition is incorrect.
    – Catija
    Commented Jan 30 at 9:47
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    No one should expect any site's policies - whether ToC, AUP, or CoC to be able to cover every single situation. That's unrealistic. We need there to be enough information to help us understand the intent and interests of the company hosting the platform and the users participating there so that we can make educated decisions about anything not written in black and white. I'd say there's been an undercurrent of fear about what would happen should someone make a mistake and.... I understand that but also really I don't... forgiveness is core to moderation but it feels like no one expects it.
    – Catija
    Commented Jan 30 at 10:00
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    @SPArcheon I don't think your argument here makes much sense. I think it's far more confusing if the policy says things are not allowed but they actually are than if it says things might be allowed but they aren't. I also wouldn't say Medical Sciences gets a free pass; we may allow things that are explicitly sexual but not sexually explicit.
    – Bryan Krause
    Commented Jan 30 at 14:10
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    Not to get too far into the weeds but I don't think you're really grokking what "sexually explicit" means. I can't actually imagine what might appear on Medical Sciences that is sexual... nakedness or images of sexual organs is not "sexual" by default. I think your argument that this policy was designed for sites like MS is faulty for that reason. In fact, I'm pretty sure the policy was designed for sites like Anime, M&TV, IPS and other similar sites - since that's the sites where I've seen such discussions occur.
    – Catija
    Commented Jan 30 at 15:09
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    @user10186832 there's no expectation that the company actually prevent all access to the site by underage users. These policies are not something the company came up with. They are mandated by the governments of the US and the EU (and signatories to GDPR). The company is complying with the regulations and has the policy in place to prevent the government entities from fining Stack Exchange for failing to comply. Seeking to understand those government policies generally and how they work is out of scope, though.
    – Catija
    Commented Jan 31 at 1:17

1 Answer 1

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I am just trying to see if legally speaking the network can claim that any user under 13/16 years old is in violation of the ToS.

Technically - yes... but I'm not really sure that it's intended to be used for the reason you're stating - it's there as minimal evidence that the site isn't designed for kids for COPPA/GDPR reasons, not to grant clearance to any PG-13 content users might want to post. Please don't consider this evidence for the argument that "kids under 13 shouldn't even be here, so my content should be acceptable".

The age of permitted users is a poor argument for whether to prohibit certain content or not. I've been involved in or read up on discussions about whether sites should allow questions about sexually explicit content or whether certain chat spaces should be OK with the same and the "but a kid could see it" comes up all the time. If the only argument someone can make for why something should be allowed is "no one under 13 should be here anyway" - they've already lost the argument.

Does that mean I think all site-relevant sexual content should be prohibited? As a former moderator of Interpersonal Skills - absolutely not! There are perfectly valid questions about this content that can be in scope on sites - though how that's managed and where they draw the line of acceptability is up to the specific site.

A troll is a troll, whether they're using sexually-explicit content or not... a troll on IPS was regularly creating accounts to ask contrived questions that frequently skirted the line of being just too much explicit detail to be necessary to describe the situation in the question they were asking. No site should allow such behavior that has risen to the level of trolling.

Should a site wish to entertain these questions, they should certainly consider edits that prevent such content from being immediately viewable - such as hiding the image behind a warning - or they may just decide that images aren't ever acceptable after trying to allow them for some time. In general my understanding regarding the historical rule about linking to such sites is to avoid the site getting banned from web filtering - but I'm not sure whether this is still how the internet works.

As to the actual legal aspect of it... with the preface: I am not a lawyer. Take what I say with a giant asterisk.

I'm more familiar with COPPA than GDPR - mostly because it's been around longer and I'm not European... but I've had to address both in the past. I think the rule summary for COPPA gives most of the info you need to understand the two-part aspect of this part of the ToS:

COPPA imposes certain requirements on operators of websites or online services directed to children under 13 years of age, and on operators of other websites or online services that have actual knowledge that they are collecting personal information online from a child under 13 years of age.

There are two parts to this that apply to different sorts of websites:

  • operators of websites or online services directed to children under 13 years of age
  • operators of other websites or online services that have actual knowledge that they are collecting personal information online from a child under 13 years of age

So, SE wants to do two things:

  • Make it clear that the site is not directed to children under 13.
  • Make it clear that people under 13 must not give the site any PII (i.e. registering for an account) or post any PII on the site (e.g. in a question or answer).

Now, the FTC's FAQ about COPPA (section A, question 12) actually recognizes that simply saying in your ToS that the site isn't geared to under 13s isn't enough to clear a site from being deemed to be directed to children:

Importantly, however, a website or online service may be deemed directed to children even if its Terms of Service prohibits children from using the site or service.

That said, since it seems unlikely that the platform falls into the definition generally, having it in the ToS isn't going to hurt.

In answering the same question, the FTC states that general audience websites are exempt from situations where under-13s lie about their age or if the site doesn't collect the ages of users:

COPPA covers operators of general audience websites or online services only where such operators have actual knowledge that a child under age 13 is the person providing personal information. The Rule does not require operators to ask the age of visitors.

By the same token, if SE discovers that someone who has created an account is underage (usually they state it on their profile or in a post), they must act on that information - which in the case of SE means the user account goes *poof* - along with all of their PII.

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  • Thanks for your time and effort for this insight, Catija. Appreciated.
    – ꓢPArcheon
    Commented Jan 29 at 18:41
  • Alas about the intent.. don't worry. First, I didn't mean this question to be about that - here I am only interested about the "what", not the "why". Second, if any my argument would be the exact opposite - does this also means that the site pretends to be friendly to younger users? You mentioned the "no one under 13 should be here anyway" thing, but I see far more common the "kids can browse the site anonymous and they can just search bad stuff on Google anyway so no need to restrict content here". [cont]
    – ꓢPArcheon
    Commented Jan 29 at 18:43
  • But let's leave the "does the site imply to be safe to use for people as young as 13" for a new question someday in the future.
    – ꓢPArcheon
    Commented Jan 29 at 18:44
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    I would hope my answer would allow you to deduce the answer to that? As far as I'm aware, the primary need for the company is to avoid being seen as "directed to children under 13" for the purposes of COPPA (among other rules). The only other age-based restrictions I'm aware of are the ones for platforms specifically designed for sexual content and those designed for alcoholic beverages, which are subject to age verification requirements. General purpose sites like SE are none of those three and under the fewest restrictions.
    – Catija
    Commented Jan 29 at 19:26

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