Social media: Rise of ‘kidfluencers’ pushes legislators to engage with children’s rights online
The rise of child influencers – or ‘kidfluencers’ – on social media has prompted calls for greater regulation of the industry.
Kidfluencers may be children who are the focus of a commercialised social media account, whether managed by their parents or themselves, or children involved in family or parenting influencing profiles.
In May, the UK House of Commons Digital, Culture, Media and Sport Committee published the report Influencer culture: Lights, camera, inaction?. It highlights that ‘child influencers are some of the most successful influencers’, and ‘influencer agencies see family influencers as some of the most in-demand social media stars […] because they appeal to both children and parents’.
These profiles can be a family’s primary source of income, and the success of the industry is pushing legislators to address the extensive gaps in its regulation, such as around children’s privacy rights and the possibility of labour exploitation.
For Caroline Andre-Hesse, Vice-Chair of the IBA Employment and Industrial Relations Law Committee, there are three key areas of concern. Firstly, around the privacy rights of children on social media, particularly how images of them are used and by whom. Secondly, the matter of compensation for their work on social media platforms, namely whether it’s protected for their future use. Finally, whether working time and conditions can be regulated to ensure there’s no adverse impact on the child’s experiences.
Lights, camera, inaction? highlights that ‘children spend long hours producing financially lucrative content at the direction of their parents and guardians but are not protected under the UK’s child labour laws’.
[Obligations should lie] on the shoulders of brands that promote the product – so, if [a brand] wants a 12–16-year-old to promote its products, the parents’ prior approval should be requested
Vice-Chair, IBA Employment and Industrial Relations Law Committee
‘The fact that user generated content is excluded from all UK regulation that safeguards children means that child influencers represent a grey area in the law’, the report continues. ‘They can therefore be at risk of exploitation because they lack the legal right to the earnings they generate, or recourse to demand safe working conditions and protections via labour laws.’
In 2020, France introduced a new law that attempts to protect kidfluencers through child labour rules. Under this legislation, parents and companies must seek permission from authorities to produce commercial videos featuring a child under 16 for video-sharing platforms where the duration of the filming or the revenue earned by the publication of videos exceeds set thresholds. Failure to do so can lead to fines of up to €75,000 and five years’ imprisonment.
Under the French law, the hours that children under 16 can work are limited and any earnings must be safeguarded in an account accessible when they turn 16. Parents will also receive information on the rights of their child and the possible consequences of posting their images and videos online.
‘Under the new French regulation, child influencers should have the same rights and protections as child models. And it doesn’t only cover employment law’, Andre-Hesse says. The protection of earnings is an area that has been very clear for models, who tend to have specific contracts with agencies, ‘but has seldom been the case on social media, because there is less paperwork’.
Outside of the set thresholds, however, kidfluencers’ work is left to parental regulation.
‘As long as they do not breach the law with respect to what they ask the kid to do on social media, then it is not possible for the State to act’, says Andre-Hesse. The law does provide ‘strong recommendations’ that cover renumeration, ‘as well as to ensure health, safety, limited work duration, avoiding work at night’, among other issues, but ‘it is only a recommendation, and there is no case law that can support consequences for breaches’.
Further, there’s little scope to regulate the work of kidfluencers who use their platforms independently, without parental oversight.
‘There are many children essentially using their accounts for advertising without any clear frameworks,’ says Andre-Hesse, ‘and it’s clear that it would be great to have a legal framework to ensure that there is no abuse, no impact on their health and safety, no impact on their studies and personal life. But to be realistic, I don’t see how it could be structured to make the relating protection enforceable.’
Although social networks often have age limits, these are easy to bypass. Children can use them autonomously, with parents relatively or completely uninformed about the account’s existence or how their child is behaving online – even if the child begins earning money and entering into informal, undocumented partnerships with brands.
Andre-Hesse supports obligations being ‘on the shoulders of brands that promote the product – so, if [a brand] wants a 12–16-year-old to promote its products, the parents’ prior approval should be requested.’
To address the dangers of parents exploiting children, she says, ‘you can have contracts between brands and parents that specify where the money goes [and/or which] limit the number of posts per week or month’.
The French law places limited obligations on social media companies themselves, but establishes a charter for video-sharing platforms, which calls on them to support user understanding of the impact caused by the dissemination of images of children.
To support and enshrine the privacy rights of under-16s, the French law allows for children to demand that platforms remove videos of them without requiring the approval of their parents. In doing so, it enshrines the right to erasure under the EU General Data Protection Regulation (GDPR).
However, some kidfluencers are featured on family profiles from a young age, and are perhaps unable, therefore, to agree to dissemination or request the removal of such content under the GDPR.
In 2021, a UN Human Rights Council report called for children’s privacy to be maximised in the digital age as threats to privacy increase at ‘alarming rates’.
The Special Rapporteur on the right to privacy, Joseph Cannataci, argues that ‘Parents have a role to play in protecting their children’s right to privacy, but it is not only up to them: States must safeguard children’s rights by establishing appropriate practices and laws, and also ensuring information is available to children themselves on exercising their rights.’
He calls for a human rights-based approach, emphasising ‘technical solutions and digital literacy alone are insufficient without rigorous and sustained action by States to address structural inequities and ensure children’s privacy, data protection and safety’.
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