I. Legal History of Children’s Privacy and Economic Rights
In 1939, California enacted the Child Actors Bill, also called the Coogan Act, to ensure financial compensation for minors working on movie and television sets. The Act requires a child actor’s employer to reserve 15% of earnings in a trust (typically called a Coogan Account). It also sets employment requirements such as schooling, work hours, and time off. Jackie Coogan, the law’s namesake, was a child actor who earned millions only to discover as an adult that his parents spent almost all his money. California has made few changes to the bill over the past eighty-five years, but one issue has remained: the bill only covers child actors under contract.
Today, there are thousands of minors participating in online content. Social media platforms like Youtube, Instagram, and TikTok mean that children are generating massive profits for their family members, regardless of whether they receive financial compensation. Family vloggers make up a large percentage of online media, with creators capitalizing on adorable baby faces and documenting children’s day-to-day lives for viewers. Without the employment contracts of traditional media, these social media minors are left without protection under the Coogan Act.
On a federal level, there is still no national regulation protecting child actors. California and New York have the strongest protections to date, because of their major participation in the film industry. Seventeen U.S. states lack any protection specifically for child actors. Of course, all states must still comply with standards for age, working hours, and wages for children under the Fair Labor Standards Act.
Credit: Ketut Subiyanto | Pexels
II. The Modern Relationship Between Brands and Online Familial Content –
Unlike the paradigms of traditional media, the economic incentive and relationship with children begins as early as pregnancy. The commodification of pregnancy has deep roots in celebrity culture – with the likes such as Rihanna, Beyoncé, and Kylie Jenner having their pregnancy and children help propel their careers. For that matter, Beyoncé’s pregnancy announcement was the most liked Instagram post of its year and Kylie Jenner’s YouTube video dedicated to her newborn similarly became one of the top trending videos of its year. For pregnant influencers, their social media engagement can increase nearly by eleven times once creating content that centers around their pregnancy experience. The rise in followers, engagement, and viewership ultimately leads influencers to establish partnerships with brands, sponsorships, and other affiliate programs.
This established relationship lays the foundation for the economic success of “Family Influencers.” On TikTok alone, there are roughly over 700 Family Influencers who have an average of 7,124,003 plays per video. Most of the family content centers around photos, skits, dances, vlogs, and other acts that they do with their children. The range of income for family influencers online varies greatly depending on popularity, for certain “mommy influencers” a post during their pregnancy can lead them to earn twenty-thousand USD per post and others earning six-figure salaries from posting their children online. Meanwhile, some of the most successful family content creators have made roughly 100 million dollars in revenue from viewership, sponsorships, and brand deals.
The rapid growth of new social media platforms and fascination for family influencers has placed children outside traditional legal safeguards. Ultimately, it is unclear whether the children of these families are able to retain any of the profit that their parents are gaining from. Additionally, by growing-up on social media, there are inherent privacy risks that may plague the children. For instance, a recent New York Times study found that for family influencers who share content of their young female or female-presenting children, the viewership is disproportionately from older men, some of whom even pay more for subscriptions of exclusive content of the child. Similarly, faces of children on social media were found to be used in deepfake videos and other generative AI softwares such as PimEyes, a search engine that utilizes facial recognition technology.
III. Proposed Legal and Policy Solutions for the Potential Harms Associated with Children of Family Influencers –
On January 29, 2024, the California State Senate sought to address this issue by passing Senate Bill 764, the Child Content Creator Rights Act. The Act guarantees financial compensation for minors featured in at least 30% of their family’s online content. The adult content creator must allocate a proportionate percentage of their earnings in a trust for the minor to access when they reach adulthood.
While the bill received unanimous Senate approval, it is unclear how legislators will enforce the new law. Who is responsible for ensuring that content creators properly compensate minors? And who will determine whether minors are present in 30% of a creator’s online content? While there are understandable policy arguments for a cut-off percentage, the percentage makes it easier for uncooperative parents to argue against compensation, in addition to making enforcement more challenging.
Another issue is whether minors who operate their own accounts need to set aside their earnings under the law. Senator Padilla explains that the law is primarily to protect children from exploitative parents and managers, yet it’s unclear whether the law seeks to also protect minor influencers from their own potentially-uninformed financial decisions.
The legal solutions to children’s privacy and economic rights do not automatically present a win-for-all for the stakeholders involved. Moreover, implications exist that go beyond the original intent of the policies lawmakers are attempting to push forward. Stakeholders can constitute the social media companies, the children, the parents, viewers, brands, and much more. Regulators must strike a fine-balance on how to create safeguards that adequately protect users without discouraging technological development and social media use in general. Ultimately, this precarious balance at its current state creates a stand-still for children to continue to be placed in vulnerable positions online. As seen in the comments pulled by the New York Times in their investigation, a male user wrote on a young female child’s instagram post “As long as this stuff legally exists, I just enjoy it :).”
IV. Business Implications for Content Creators and Platforms Moving Forward –
In its simplest form, posting children on social media is a profitable investment. However, with an increased understanding of user data and new mediums of exploiting children online, the risk it presents for children overshadows economic profit. This poses new challenges for family influencers, for many of whom social media is the sole means of income, to find new ways to expand their personal brands. For example, under the Child Content Creator Rights Act, family vloggers whose content focuses mainly on their children will now need to sacrifice a portion of their income each month to compensate their children, rather than reinvesting the money into their business. This could potentially hinder or slow business development. Either way, both brands and social media companies alike must bear the responsibility to actively encourage safer content online and to protect vulnerable populations such as children.
V. Conclusion –
The privacy and economic concerns that children face in light of media fame now face a new plethora of issues accompanied by social media. The mosaic of legal and policy regulation aims to create a solution for this risk, but must act diligently to create adequate safeguards that protect children online.
*The views expressed in this article do not represent the views of Santa Clara University.