Insights ICO consults on draft guidance on meaning of “likely to be accessed” in context of the Children’s code


In September 2022 the ICO marked the anniversary of its Children’s code and clarified that adult-only services are in scope of the Children’s code if they are “likely to be accessed” by children. To support Information Society Service providers (ISS) to assess whether children are likely to access their service, the ICO has now developed guidance, which consists of FAQs, a non-exhaustive list of factors that providers of adult-only services must consider and case studies.

In summary, the guidance states that:

  • all providers must decide whether children are likely to access the service, even if the service is an adult-only service;
  • the Children’s code applies both to services that are intended for use by children and to services that are not aimed at children, but are accessed by a “significant number of children”;
  • a “significant number of children” means that the number of children accessing or likely to access the service is material, such that the code applies;
  • to decide whether children are likely to access the service, providers should follow the list of non-exhaustive factors;
  • if a significant number of children are likely to access the service, the provider should conform with the standards of the code or apply robust age-based access restrictions;
  • if the provider uses an effective age-gating page to ensure children are not accessing an adult site, the age-gating page itself does not fall within the scope of the code; and
  • following the list of non-exhaustive factors set out in the guidance when providers make their assessment will help them comply with the accountability requirement.

The ICO is seeking feedback on the guidance documents; the deadline for responses is 19 May 2023. To access the guidance and the consultation, click here.