I. Introduction
While Marcus Aurelius famously observed that “all is ephemeral – fame and the famous as well,” the rise of social media has only intensified humanity’s pursuit of visibility and recognition. The promise of engagement, virality, and digital validation now attracts individuals across the globe, particularly younger audiences. Within this environment, a troubling phenomenon has emerged: the increasing presence of children as subjects of social media content. In many instances, these children exercise little to no agency over their participation. Parents frequently film and post them online, often long before the children are capable of understanding, let alone consenting to, the creation and circulation of such content. Such children, who are either themselves or via their parents active as content generators on social media, are colloquially referred to as child influencers (“CI”). The protection of a CI is currently a highly debated topic, both domestically and internationally. This is owing to the ubiquity and ease of access to social media, coupled with the paucity of regulatory mechanisms to protect children’s rights and interests. The importance of regulatory mechanisms becomes more pronounced, as most of a CI’s work is confined to their homes and under their parents’ control. Consequently, the level of regulatory oversight by the state poses a direct challenge to the household’s right to privacy and to parents’ rights in the upbringing of their children. While much has been written about this in foreign countries, including the United States of America (“USA”) and the United Kingdom (“UK”), little has been written about it in the Indian context.
In this regard, the article is divided into two parts. The first part discusses the risks to which children are exposed on social media and outlines the existing regulatory framework in India for protecting CIs. And, the second part of the article builds on this premise by examining the regulatory frameworks of other jurisdictions, including the USA, the UK, France, and the European Union (“EU”), as well as the provisions of the United Nations Convention on the Rights of the Child, 1989 (“UNCRC”). Based on this comparative review, it develops suggestions adapted to the Indian framework and concludes the article.’
II. The Perils of Growing Up Online
The levels of risk to which CIs are exposed are manifold. These risks are not limited to those caused by a third party but also include those caused by their parents. To build their popularity and fame on social media, parents often share personal information about their children. This can have serious mental and psychological repercussions on children, as information relating to their childhood would still be in public when they are mature enough to make decisions on their own. Further, since children have no say over the content about them that their parents post, a child’s reputation or dignity can be seriously tarnished if parents do not filter what they share. Moreover, since the CI setup is limited within the walls of a home, parents may decline what their child wants, control the activity the child engages in, and set the duration for which the child is required to work. Therefore, if content creation remains unregulated, the demands of producing online content may begin to interfere with a child’s well-being. Parents may prioritise filming or posting content over their child’s schoolwork, assignments, or social interactions. Beyond these indirect pressures, there have also been instances where parents have subjected their children to abuse in pursuit of online popularity.
A significant instance was of the YouTube channel ‘Fantastic Adventures’, wherein a mother starved and tortured her children who refused to participate in the videos created by her. Further, in 2023, the ‘egg crack challenge’ went viral, in which parents were seen breaking eggs on their child’s forehead under the pretext of cooking or baking, often provoking the child to tears and recording their reaction for online content. Such instances can lead to serious emotional abuse of young children who could have a sense of being used as a source of amusement, as noted by the neonatologist and paediatrician Prathap Chandra. Another problem with unrestricted sharing of information by parents is the breach of children’s privacy and exposure to the risk of digital kidnapping.
One form of privacy breach is the violation of a child’s dignity. As discussed above, parents share all kinds of content about their children on social media without considering the pressure this may place on the child. Such inappropriate content can seriously affect children’s dignity and ordinary lives as they grow older. Furthermore, photographs and videos shared by parents online may be appropriated by internet predators, who can alter, circulate, or repost such content on paedophilic websites. Additionally, the permanence of digital information about children leads to an increase in the risk of digital kidnapping, wherein fraudsters collect all shared information to make fake accounts in pursuance of committing crimes. Digital kidnapping is a serious concern and could lead to future identity fraud, according to a Barclays study. Moreover, online posts may expose a child to trolling and bullying on the internet.
Negative comments from the public have the highest degree of impact on a child’s mental health. Psychologist Ginger Clark has noted that obnoxious comments on social media can make a child feel like a mere commodity in the public eye. With child-featured content, there is always a risk of paedophiles exploiting the algorithm and saturating the comments section with lewd and indecent comments. In cases where the account used to generate the content is managed by the child, another concern is the audience’s ability to contact the CI directly via the message feature. This furthers the risk of online harassment and cyberbullying, as people can directly and privately reach out to the CI without any regulation by social media. There have been numerous incidents of such online harassment, including death threats and body shaming, among others. Further, even within the CI demographic, a report by the UK House of Commons has noted that there are certain smaller groups, like female CIs, who are more prone to cyberbullying and harassment as compared to other influencers.
Thus, it is evident that CIs are exposed to a heightened level of risk on social media, both because of their parents and third parties. Given the young age of CI, it is vital to implement appropriate measures to ensure the security and welfare of these kids whilst still allowing them and their parents to share content on social media.
III. Lacunas in the Indian Framework: Necessity for Better Regulations?
The main statute governing CI in India is the Child and Adolescent Labour (Prohibition and Regulation) Act, 1986 (“Act”). Section 3 of this Act provides that a child may work during vacations or post-school hours to support his family or family business. Furthermore, in addition to this act, chapter 3 of the guidelines issued by the National Commission for Protection of Child Rights (“Guidelines”) sets out multiple conditions to be followed when engaging a child in content creation. These include a set number of working hours for children [12(a)], the kind of tasks and the manner of engagement of children [12(c-e)], preclusion of exposure to harsh comments or ridicule [12(g)], non-participation of children in activities against their consent [12(j)], etc. However, despite these Guidelines, the Indian framework presents a range of problems when scrutinised critically.
While the Guidelines set working hours for children, there is no mechanism to ensure those hours are adhered to. Furthermore, while the Guidelines provide for protecting a child’s emotional and psychological health [12(k)], this appears to be merely suggestive. There is no provision in the Guidelines to ensure that parents in households strictly adhere to them. Additionally, the Guidelines’ inadequacy is evident in that they merely mention the non-involvement of children in any activity against their wishes. However, as noted in the previous section, children are often involuntarily coerced by their parents to create content on social media. This problem becomes more pronounced because there are no penalties for parents who disobey these Guidelines.
Punishment for violation of the Act or Guidelines is provided under section 14 of the Act. It states that a child’s parents or guardians are to be punished only if they permit the child to be used for commercial purposes, against the mandate of section 3 of the Act. It is to be noted that, by the Act’s language, it appears the Act does not envisage situations in which the parents are the ones violating the Act or the Guidelines, by commercially exploiting their children. The Act also views parents/ guardians as the only ones who can give consent to production houses/units that, in turn, employ their children in violation of the Act/guidelines. Furthermore, parents or guardians are not punished for the first offence under Section 14(2A). This gives further leeway to parents to exploit their children, as, firstly, catching hold of any violation within a house is difficult, and secondly, there is no punishment prescribed for first-time offences by parents or guardians. Besides these, the Guidelines are also ineffective in providing a safe online space for children.
The Guidelines mention that children should not be exposed to ridicule or harsh comments on social media [12(g)]. However, like the other parts of the Guidelines, this appears only to be suggestive, without concrete measures to ensure its proper implementation. The laxity with which the regulatory framework addresses CI is evident, as guideline 15, applicable to social media intermediaries, is merely an extension of the existing IT rules. The Guidelines do not mandate any additional precautions or safety mechanisms for social media intermediaries to ensure children’s safety in the online space.
From the prospectus of the above findings, it is clear that the Indian regulatory framework is ill-suited to safeguard the well-being of CI. To remedy this, it is incumbent on the Indian landscape to learn from other jurisdictions with better laws and regulations in place to protect CI. Part II of the article explores the regulatory frameworks of select foreign jurisdictions and examines the provisions of the UNCRC, before concluding with suggestions developed for the Indian context.
Tanay Khanna and Subhalaxmi Mukherjee are third – year students at the West Bengal National University of Juridical Sciences.
NUALS Law Journal 