On June 2, 2009, the Governor of Maine signed into law an Act To Prevent Predatory Marketing Practices against Minors, codified at Maine Rev. Stat. Ann., tit. 10, ch. 1055, § 9551, et seq. Although its title would seem to apply to “predatory” practices, and earlier versions focused only on health-related information, the enacted bill effectively extends COPPA protection to those younger than 18 (the age of majority in Maine) rather than just those younger than 13.
Under the new law, which is effective 90 days after the date of enactment, it is unlawful to collect individually identifiable information about “minors” without verifiable parental consent, if the information is going to be used for marketing purposes. The new law comes with a private right of action that allows for damages up to $250 per violation. (It is not clear how “per violation” will be defined, and whether a person can bring the action for violations involving only his or her own personal information. At the very least, the possibility of a class of consumers seeking recovery of up to $250 per violation is present.) The plaintiff also is entitled to attorneys’ fees and costs, and the amount of the damages can be trebled if the violation was willful.
The new law also creates a civil penalty, which appears to be available only in the case of an action brought by a state regulator, of “no less than” $10,000 per violation. The penalty goes up to $20,000 for subsequent violations of the law.
What This Means
Although regulations could be developed that temper the possible effect of this new Maine law, on its face, it essentially extends the Children’s Online Privacy Protection Act (COPPA) to cover teenagers. What is missing, however, is any reference to the exceptions in COPPA that permit marketers to offer children the ability to provide their online contact information in order to participate in a one-time request for a service, like entering a sweepstakes. Thus, a marketer is faced with the prospect of having to obtain COPPA-style verifiable parental consent from a teenager (under 18) in order to include a minor from Maine in his promotion, or voiding the promotion in Maine (at least for those under the age of majority).
