Background

What might have begun as cutesy snaps of the baby circulating to a friends group has grown into startup business ventures, as Influencer parents are profiting from social media accounts showcasing images of their children.  

As Covid encourages more home-based entrepreneurs to launch online businesses, an increasing number of parents are actively growing their children’s social media follower base and leveraging it as a means to earn income.  ‘Kidfluencers’ is how The Australian referred to children whose social media followings can generate hundreds of thousands of dollars in advertising revenue. 

The Australian recently profiled a famous Australian in Thailand, Matthew Deane, a 43-year-old singer, actor and Thai boxing MC, who has an online following of some 6.2 million between him, his wife and two children on Instagram.  For the Deane family, social media is an income stream with their social media accounts often linked to product contracts. 

But what if the children, as they get older, demand the images be removed or the social media account transferred to their name?  The Kidfluencers phenomenon raises an array of legal questions, ranging from social media account ownership issues to compliance with privacy, anti-bullying and child labour laws.  We explore some of those issues below.

Our Analysis

As intellectual property lawyers, an obvious starting point for us is the copyright rights in photographs depicting a child.  If the parents took the photographs then they most likely own the copyright in the images.  But that is only the tip of the iceberg and is by no means determinative of the other legal issues that may arise.

Privacy law

If a child becomes old enough to understand how they are being depicted on platforms like Instagram and they are unhappy that their parents had monetised their social media presence, the child could argue that the parents’ publication and use of the photographs are in breach of a privacy law. 

The Australian Privacy Principles (APP) enshrined in the Privacy Act 1988 prescribe rights and obligations around the collection, use and disclosure of an individual’s personal information.  Photographs depicting a child may amount to ‘personal information’ under the Act, given they record information about an identified individual (namely, the child).  To be subject to the APPs, the parents must be ‘APP entities’ as defined in the Act.  If, for example, the parents operate a company with an annual turnover of at least $3 million, or if they are captured by the definition of ‘APP entities’ in some other way, then they must consider whether their publication and use of the photographs may be in breach of any the of APPs.

Anti-bullying law

Further, if the child wishes to have their photographs removed from social media platforms, one of the fastest available options would be to do so under anti-bullying laws.  Under the Enhancing Online Safety Act 2015, a child may make a complaint to the eSafety Commissioner about cyberbullying ‘material’ provided on social media, and the eSafety Commissioner is empowered to issue a notice to direct the social media service provider, or an end user (namely the parents), to remove the material.  Such material can be in any form, so long as an ordinary reasonable person would conclude it is likely that the material was intended to have the effect of seriously threatening, intimidating, harassing or humiliating the child.  If the end user or the service provider fails to comply with the removal notice, the Commissioner has the power to take further enforcement action including seeking a court injunction.

Abusing children for YouTube visits is not unheard of. In 2018 Cordero James Brady was temporarily suspended after he posted videos playing “cruel” pranks on his children, a move labelled “child abuse”.

Under the new Online Safety Act 2021, which will come into force on 23 January 2022, the Commissioner is given a wider range of powers, including the power to require service providers to remove cyberbullying material within 24 hours of a removal notice being issued.

Other issues

Other legal avenues are open to the child and some of those avenues may result in having the social media account transferred to the child.

The child could argue that their parents had engaged in misleading or deceptive conduct, or made false and misleading representations as to the person who has actual control of the account.  For example, if the parents had posted photographs of the child as part of promotional activities in relation to a product, it could be argued that they had represented to consumers that the child had endorsed the product, when in fact it was the parents who had entered into a product endorsement contract.  The child could argue that the parents’ conduct falls foul of the Australian Consumer Law, which prohibits misleading or deceptive conduct, or the making of false or misleading representations in trade or commerce.

Whether the child is entitled to the income from social media accounts is also a live issue.  The child may argue that, by starring in income generating Instagram posts, they are effectively doing unpaid work, and they may be able to expose an argument that they have been exploited beyond what is permitted under child labour laws under each State and Territory.  To that end, Kidfluencers may find themselves in a similar situation to a lot of young actors.  In America, it is common to see twins sharing a single role in a television series or movie in order to circumvent restrictions on work hours imposed under child labour laws.  The guardian would be required to give consent for the child to work under such arrangements, and where that payment goes raises issues about the guardian’s responsibility over the child’s work. 

Concluding Remarks

In our view, if parents intend to have their children star in money-making social media ventures, it is vital that they plan ahead and anticipate that the child will eventually come to understand how they will have been portrayed online and their designated function in the business enterprise.  Parents must keep in mind how the child feels about their role on social media, whether they want the account shut down or transferred to their name, or the income generated from it.  After all, it is the child’s face that drives the lucrative income stream, and so it is a matter of course – whether commercially, legally and morally speaking – that the child’s interests be adequately safeguarded.