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Food Marketing to Children and Youth: Threat or Opportunity?
collected from children, how the operator uses that information, and whether that information is disclosed to third parties. In addition, the regulations require that the operators obtain parental permission before they collect, use, or disclose the personal information of children. Operators must provide parents with a reasonable means to review the personal information collected from their children and to stop its maintenance or continued collection if they desire. The regulations prohibit an operator from conditioning a child’s “participation in a game, the offering of a prize, or another activity on the child’s disclosing more personal information than is reasonably necessary to participate in such activity.” Finally, the regulations require operators to establish and continue reasonable procedures to protect the confidentiality, security, and integrity of personal information collected from children (16 C.F.R. 312.8).21
It is likely that restrictions on Internet speech will be subject to the same kind of First Amendment scrutiny as would be deployed were the restrictions applicable to speech in movies or in newspapers. The nature of this scrutiny will depend upon whether the communication at issue is categorized as “public discourse” (Hustler Magazine v. Falwell, 1988), in which case constitutional review will be quite strict, or instead as “commercial speech,” in which case it will be subject to the more lenient standard of the Central Hudson test. Regulation of the Internet poses unresolved constitutional issues because the constitutional status of much speech on the Internet is at this time highly uncertain.
Increasingly prominent are “advergames,” which contain branded products built directly into a game through video games or Internet-based games with the intent to sell products (Chapter 4). Courts are just now beginning to rule that video games, if they are sufficiently artistic and complex, can be “analytically indistinguishable from other protected media, such as motion pictures or books, which convey information or evoke emotions by imagery, and are protected under the First Amendment” (American Amusement Machine Association v. Kendrick, 2001; Interactive Digital Software Association v. St. Louis County, 2003; Video Software Dealers Association v. Maleng, 2004; Wilson v. Midway Games, 2002). If advergames seem to have the primary purpose and effect of selling products, however, they might be categorized as advertisements rather than motion pictures or books, and hence subject to the standards of the Central Hudson test. There is also the question of how courts will categorize entire websites, such as Postopia.com®, hosted by Viacom International (compare Ford Motor Company v. Texas Department of Transportation, 2001 with Fred Wehrenberg Circuit of Theatres, Inc. v. Moviefone, Inc., 1999). This website features Kraft Foods’ food and beverage brands that contain both advergames and other types of commercial informational content (Viacom International, 2005).