The internet has continuously been one of the greatest phenomenon ever since the beginning of the 21st century all over the globe. Its boom has significantly increased as a result of this pandemic and along with it, the number of people reliant on the internet has exponentially shot up. Social Media Networks such as Facebook, Instagram, Twitter, etc., also including video sharing applications such as Youtube and Tiktok have witnessed a great amount of growth in the number of users. 

When the primary mode of communication has turned to be the Internet, people around the globe including India have embraced such modes to disseminate their opinions and ideas. An astonishing number of children are now featured in viral videos on social media, which includes children mimicking to movie dialogues, “baby fails” and parents who play pranks on their children. While starring in such videos may seem cool to kids now, there's reason to worry that cultivating Internet fame won't be good for them in the long run -- and that they should be protected with the same kinds of laws as child actors in India.

 

GROWING ISSUES

There are numerous issues when it comes to children being made to be/act in such viral videos that are circulated in different social media platforms. 

Consent of the Child
Firstly, the child who is in such a video is not capable of providing consent to be subjected to such labour and efforts to be in the video. Parents, being their primary caregivers and providers, are often the ones who are the decision makers in such cases. Research suggests that parts of the brain that people use to make decisions don’t fully mature until around age 25. Even if we don’t consider that, age 18 is the legal age for a person to be eligible to enter into a contract which is based essentially on the matured mental capacity of an individual. Hence, a child is not fully competent to evaluate how his or her future reputation might be affected by what he or she shares now. And some parents, who are fame-seeking all on their own, can’t always be counted on to watch out for the best interests of their own children. There have been numerous cases in the United States wherein the parents have subjected their children to physical and mental abuse in the process of making them perform for such videos.[1]

Psychological Effects

Although there is no study conducted on the psychological effects of children creating videos, such engagements expose children to the loss of privacy and potential for humiliation. Moreover, both represent the child in their realistic and authentic nature, which can cause harm to children stil forming their self-identity while subjected to criticism about their persona from a large audience.[2]

These psychological harms may be driven by the extreme loss of privacy that social media influencers experience. Unlike traditional child acting, social media influencers often film in their own homes, use their real names, and share their daily routines. Plus, the sheer volume of content that influencers are expected to post means that they are on-camera and in front of audiences much more often, eating away at their privacy exponentially.

There are also countless stories of severe online harassment, with influencers and celebrities recounting death threats, body shaming, disability and identity-based insults, and other personal forms of harassment. 82 This Comment cannot sufficiently explore the psychological harms to child social media stars, but it is becoming clear that the short-lived fame of the platform can have serious mental consequences.[3]

Financial Exploitation
Kidfluencers are at particular risk of financial exploitation because there are no regulations protecting their earnings. Unless their parents voluntarily allow it, there is currently no mechanism to provide kidfluencers with legal ownership to their earnings from social media content. These children, who are essential to their channels’ successes, are sacrificing privacy and exerting hours of labor each week while maintaining no legal right to their compensation. Especially if their social media work prevents the child from excelling in school or developing other skills, or even causes widely known reputational harm, their parents’ decision to make them a kidfluencer can have serious long-term financial effects. 

Education

A child who is engaged in producing content for the public on the internet is tasked with preparation and training for making such videos. This inevitably takes the child’s focus away from education and other extracurricular activities that he/she might have been engaged in. Such deprivation of education directly coincides with the Right to Education enshrined in our Constitution and affects the child’s future immensely. Harassment of the Children by parents

Most of the children who appear on viral videos are essentially backed by their parents to do so. They follow the instructions given to them by their parents in lip-syncing to a dialogue or music, dancing, etc., and are therefore subjected to hours of training and preparation at the hands of their parents. Sometimes the parents who are supposed to be the child’s primary caregiver exert huge amounts of pressure and harassment on the children to achieve such ends. 

Misuse following viral spread of such videos on Social Media

CHILD ARTISTS UNDER CHILD LABOUR LAW

The issue of child labour or concerns over the participation of child actors in Indian Television industry has existed since long. But the recent social media post by Indian film director Shoorjit Sarkar has once again brought the issue in broad daylight, highlighting the need of sensitising the way child artists are treated. When it comes to the law that regulates working of child actors, the recently amended Child Labour (Prohibition & Regulation) Act, 1986 puts a blanket ban on all children in all occupations with exceptions of them helping their family (other than hazardous occupations and processes) after school hours and vacations and child artists in the audio-visual entertainment industry.

The Amended Act defines child artists as children who perform or practise any work as a hobby or profession directly involving him as an actor, singer, sportsperson or in such other activities related to the area of entertainment or sports. The amendment to the Child Labour rules makes it compulsory for producers of any production house or commercial event to seek permission from the District Magistrate before hiring or involving children in any such activity. An undertaking must be submitted to the Magistrate along with the names of children who’ll participate in the event or activity. The consent of each child’s parents or guardian along with the details of persons who’ll be accountable for the participants’ safety and security must also be submitted along with the permit application. One person for every five children must be appointed by the production house to ensure care and protection of every child. The rules accentuate that the children who participate shall not be subjected to discontinue their school education and not be allowed to work for more than 27 consecutive days. A child cannot be made to work beyond five hours, or for more than three hours without a break. However, the rules lack in providing any protective provisions for children under six years. 

The government has also introduced the Child Labour (Prohibition and Regulation) Amendment Rules, 2017. The Rules make special provisions for the inclusion of child actors in any type of audio-visual entertainment, be it films, short films, T.V Serials, Reality Shows, etc. 

National Commission for Protection of Child Rights (NCPCR) Guidelines

The NCPCR released detailed guidelines discussing the problems and challenges faced by child actors in reality shows, T.V. Serials etc.  It stated that "Participating in an adult-oriented industry, children are often exposed to unsuitable, anxiety inducing, and at times, dangerous operational hazards and situations. Many of these problems may be inherent and generic to the industry, but children, unlike their adult counterparts, should not be expected to handle the emotional and physical stress. It needs to be remembered that, by and large, children do not join the industry of their own volition. There is always an adult involved – a parent, or caretaker – who takes the decision for them. In the absence of any monitoring mechanism, there is every likelihood of child actors being exploited when it comes to the number of hours worked per day, and short-changed in terms of educational and safety provisions."

Important Compliances for hiring Child Artists 

  1. Prohibition of employment of children in any occupation and process: 
    According to Section 3 of the amended Act, Children, i.e., persons under the age of 14 years, will now be prohibited from working in any occupations. However, to align it with the social situation in the nation, where children also contribute significantly to the family income by being a part of family businesses, the section exempts those helping their family or family enterprise, other than any hazardous occupations or processes set forth in the Schedule, after his school hours or during vacation, from the purview of the Act.
  2. Conditions for children working for media entertainment: 
    Section 3 also exempts children working as artists in an audio-visual entertainment industry, including advertisement, films, television serials or any such other entertainment or sports activities except the circus from the purview of the prohibition if the prescribed safety measures, have been complied with.

According to the  Child Labour (Prohibition and Regulation) Amendment Rules, the Producer of the film/reality show is also tasked with certain procedural compliance such as obtaining permission from the District Magistrate, furnishing an undertaking, providing a list of child participants with the consent of their guardians, etc. The new rules also introduced a condition that at least 21% of the income earned by the child from the production or event should be directly deposited in a fixed deposit account in a nationalized bank in the name of the child which may be credited to the child on attaining majority. And that no child shall be made to participate in any audio visual and sports activity including informal entertainment activity against his will and consent.

CHILD LABOUR LAW AND “KID INFLUENCERS” IN THE USA

Every parent in the United States has a constitutional right to family autonomy recognised by the US Supreme Court in 1923 where it determined that the right “to marry, establish a home and bring up children” is a protected liberty under the 14th Amendment.[4] The parents and guardians had the liberty to direct the upbringing and education of children under their control.[5] However, in a case where the child’s custodian permitted the child to work in violation of the child labour laws, the court observed that the state has a wide range of power for limiting parental freedom and authority in things affecting the child’s welfare,” and that child labor can be subject to more regulation than adult labor.[6]

Both Meyer and Society of Sisters upheld parental rights in part because of the interest in self-expression and the heterogeneity of society.89 These important considerations of family autonomy and self-expression cast doubt on the states’ ability to regulate social media production, but do not implicate financial regulation in any way. Legislators should be conscious of this when crafting social media protections because, in some ways, regulating kidfluencers is exerting state power over the activities of a parent and their child in their own home.

Still, the Court in Prince specified child labor as an appropriate area of regulation, and the harms that kidfluencers experience must be cabined in some way, so some regulation of kidfluencers is acceptable. The task, then, is to define the social media content that should be considered labor and determine what kinds of regulations are practicable given this novel landscape.

The Coogan Law: A Financial Perspective

The Coogan Law is named for famous child actor Jackie Coogan. It wasn’t until his 21st birthday after the death of his father and the dwindling of his film career that Jackie realized he was left with none of the earnings he had work so hard for as a child. Under California law at the time, the earnings of the minor belonged solely to the parent.

The California Child Actor's Bill (also known as Coogan Actl) is a law applicable to child performers, designed to safeguard a portion of their earnings for when they reach the age of majority, and protect them from exploitation and abuse.[7] However, advocates for child workers’ rights argue that the law hasn’t kept pace with the digital age, and as a result, kidfluencers are falling through the cracks. In fact, no law outlines protections for minors earning income in social media. It’s a cause for concern since, without protections, they stand to lose millions to their own parents.[8]


Idea to include Social Media Advertising under Child Labor Law
In 2018, California lawmakers took a first stab at this issue with a bill that attempted to add “social media advertising” to the definition of employment in child labor law. Under this “kidfluencer” bill, minors working in the digital sphere would have to obtain a work permit and follow measures similar to those required by the Coogan Law. However, the same was met with wide criticisms from the parents and certain part of the public on the ground that such videos make the kids happy and if they don’t see a problem within it, it shouldn’t be regulated. 

The version of the Bill that was signed into law and went into effect in January 2019 was diluted significantly from what was originally proposed. It exempted young digital creators from obtaining work permits if their performance is unpaid and shorter than an hour. 

Critics of the kidfluencer bill argued that enforcing work permits would be difficult, if not impossible. Unlike traditional media, which is subject to strict schedules and studio oversight, digital content can be filmed whenever and wherever a creator wants. Especially in cases where the law for child labour requires a state-appointed or state-mandated supervisor to look over the children’s well-being. Such supervisors cannot be expected to be present in the private homes of the children where such videos are majorly produced. 

KID INFLUENCER LABOUR LAW IN FRANCE

France adopted a new law on the commercial use of images of children under 16 years old on online platforms. This law aims to provide a legal framework for the activities of “influencer” on Youtube, TikTok, Instagram, and other online platforms. This new legal framework fills an important void, as the work of child influencers was largely unregulated and their work could easily be exploited by their parents. [9]

  • Under this new legislation, child influencers will be protected by the French Labor Code in a manner similar to child models or child actors. 
  • Prior government authorization will now be necessary before a child can engage in online video activities that can be considered as being within a labor relation.
  • The new rules will apply to situations where the child is in a labor relation. Such a labor relation exists if, for example, the child receives orders or directions from the video producer. The new legislation will require that parents seek prior government authorization before their child can engage in online activities that amount to a labor relation. As part of the authorization process, the child’s parents will receive information on the rights of their child and on the potential consequences of the release of images of their child on the internet.
  • The new rules will also apply to what the National Assembly’s committee report on the bill called a “grey zone,” where the child is not in a labor relation, but nevertheless spends a significant amount of time making videos or derives a significant level of income from them. Beyond certain thresholds regarding the number of videos produced, the cumulative length of these videos, or the level of income generated by those videos, the child’s parents will need to submit a declaration to the government authorities. On submitting this declaration, the parents will also receive information on the rights of their child and on the potential consequences of the release of images of their child on the internet. The thresholds of time and income that will trigger this obligation to make a declaration will be defined by government decree in the near future.
  • Perhaps most importantly, child influencers will see their income protected under this new law. Specifically, only part of the child’s income will be paid to the parents, while the balance will have to be placed in a special savings account that the child will be able to access when he or she reaches adulthood or legal emancipation.
  • Additionally, the new law explicitly allows minors to assert their right to be forgotten. Video platforms will be required to remove the child’s videos upon his or her direct request, even without the parents’ consent.

 

CONSIDERATIONS FOR INDIAN CHILD ARTISTS ON SOCIAL MEDIA

The rise in child performers on social media platforms such as Youtube, Instagram, Facebook, etc., has led to a new form of labor that is unregulated by the child labor laws in our country. Children spend hours per day producing such content at the direction of their parents with no personal or financial protection, and at the same time, are often being subjected to numerous psychological and social issues. 

The arena that the state is seeking to regulate falls on a grey area. On the one hand, it can be argued that such children are merely exercising their right to self-expression on the internet and are in fact having fun while doing it. On the other hand, the child could also be potentially exploited at the hands of their parents. There is a growing need to protect such children from any exploitation, either coming from their parents themselves or in the form of cyber bullying. 

Child labor regulations are enforced in India primarily to curtail child abuse and in order to provide their fundamental right to education as enshrined in the Constitution. Such child labor law protections could also be extended to the children who are engaged in producing such content on the internet. However, child acting regulations such as work permits and workplace condition requirements might be unworkable or overly invasive in the social media context where the work occurs at home with the parents. Compulsory registration of such child content creators and the details of the length of hours and amount of videos must be mandated to be disclosed to ensure that such records are readily available to any public authority if there is a need. The same has to be coupled with a strong data protection law which will in turn ensure that such personal and sensitive data about the children are awarded proper security. 

In the context of cyber bullying and spread of such videos/images of children on several social media platforms, the parents of the child should be informed of such potential threats by an appropriate public authority. 

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We speak the language of Technology & Internet. We understand how the law interacts with Technology & Internet. Cyber Crime Chambers is a boutique firm specializing in internet laws and digital forensic evidence.

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Karthikeyan.N

B.A., B.L., (Hons) IPDP., (London)
Pgd IPR., Pgd Cyber Law., Msc., (IT)
CCI., CFA., IPCL.,
Advocate, Madras High Court

Karthikeyan, is a renowned cyber law expert, who is also the Managing Partner of Law Office of Karthikeyan, a reputed law firm based in Chennai.

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