Subhalaxmi Mukherjee and Tanay Khanna
I. Introduction
The previous part of this article discussed the dangers to which a Child Influencer (“CI”) is exposed on social media. It further discussed the Indian regulatory framework applicable to CIs and highlighted its inherent problems. This part of the article discusses the laws and regulations in the United States of America (“USA”), the United Kingdom (“UK”), France, and the European Union (“EU”) for the protection of CIs. It further discusses a few provisions of the United Nations Convention on the Rights of the Child, 1989 (“UNCRC”), to highlight the international mandate that every country is obligated to follow for the protection of children. Thereafter, upon examining other jurisdictions and international mandates, the article provides a few suggestions for protecting CIs that can be directly applied in the Indian context. Lastly, the article offers concluding remarks.
II. What the World is Doing: Foreign and International Approaches
i. United States of America
The USA has a rich discourse on the protection of child actors. To begin with, to protect the income generated by child actors, California passed the Coogan Law in 1939, requiring that 15 per cent of the income be deposited in a separate bank account for the child’s use upon maturity. Even though the Coogan Law generally applies only to child actors, not to CI, many states in the USA have passed laws extending its application to CI. In addition to the Coogan Law, multiple acts and bills have been passed by various states to help safeguard CI.
In 2023, Illinois amended its child labour law to give children an independent right to pursue private action if any of their rights under the law are violated. This is a major leap in the autonomy and rights paradigm for children, as, in most cases, parents or guardians, on behalf of children, are given the right to pursue an action in the event of a violation of children’s rights. Furthermore, this would also assist in reporting incidents of rights violations, including those committed by individuals close to the child, which parents may otherwise be reluctant to report. In addition to this act, numerous state-level bills have been proposed in the USA.
In 2002, the Child Modelling Exploitation Prevention Act was proposed to regulate how children were portrayed online. Further, it aimed to protect such children from harm, mental and psychological, at the hands of paedophilic predators who might contact such children. While the purpose of this bill was to prevent the use of a child as a commodity in online modelling for marketing or profit, this could be extended to social media, where parents and/or guardians use children to make money. This would bring into the picture the entire debate surrounding the autonomy of parents and that of their child (this will be addressed shortly in this section). Further, in 2022, the Kids Online Safety Act was also proposed. This bill required social media platforms to have a dedicated reporting mechanism focused solely on minors. Even though it would not have countered the menace of problems faced by CI, a dedicated grievance redressal mechanism might have ensured focused and efficient handling of complaints submitted by or on behalf of minors. Moreover, the Kids PRIVACY Act, a bill introduced in 2023, was proposed to ensure children’s online privacy. The bill was intended to prevent social media intermediaries from sharing personal information about children, except for information related to their employment. In addition to giving the children an independent right of action, this bill allowed them to revoke their consent to the sharing and free circulation of their personal information on social media. Additionally, children or their parents could request that a social media platform delete information relating to the child from its servers, thereby recognising the right to be forgotten. Apart from legislative attempts to safeguard CI, there have also been judicial interpretations that have limited parents’ authority to decide on behalf of their children.
American courts have held that the state has a compelling interest in safeguarding children’s rights. However, the general position has been that parents have the ultimate authority to decide how their children are raised. Further, courts have observed that the misuse of childrens’ rights by a few parents does not justify the state overriding parental authority in matters concerning the control of children. Despite these findings, some American courts have granted the state limited authority to intervene and supersede parental control over children in certain circumstances.
In the watershed decision of Prince v. Massachusetts, the court ruled that, although parents have wide discretion in controlling the upbringing of their children, if such control leads to an abridgement of the children’s rights or affects their welfare, the state may intervene to regulate the child. Furthermore, apart from the state’s right to supersede parental autonomy, in Wisconsin v. Yoder, Justice Douglas, in his dissenting opinion, acknowledged a child’s right to have a say in decisions made by a parent on his/her behalf. Justice Douglas opined that, even though the parents’ opinion is usually taken to be the family’s, in matters intrinsically related to a child, the child’s consent should be considered independently. While this was a dissenting opinion, it was a pathbreaking observation by the court, as it was the first instance in which the court recognised a child’s autonomy as a factor in deciding a case involving the child themselves.
ii. France, the UK, and the EU
In 2020, France extended the protections available to child actors to CI. The amendment makes it mandatory for any company planning to employ children in this type of work to obtain the requisite permissions from the concerned authority. Furthermore, the law clarifies that the permission mandate would continue to apply even when the child is not engaged in a formal labour relationship but receives a standard income. Additionally, one of the major contributions of the 2020 amendment was the introduction of the right of erasure. The right of erasure allows a child to request the deletion of the content posted by his/her parents during childhood if the child feels that the content is inappropriate and was posted without his/her consent. This ensures that a child’s right to control information about them circulating online is balanced with parents’ freedom to post content. The amendment has also introduced sanctions against social media platforms that fail to remove such content upon a request from a person.
Furthermore, the UK has developed a standard to evaluate whether a child can make a rational decision and whether the child’s opinion should be considered. As per the Gillick competency test, evolved by the House of Lords in 1985, a child may give valid consent if the child has “sufficient understanding and intelligence to understand the nature and implications of the proposed treatment ”. However, if the child does not meet the standard, the parents must consent on the child’s behalf. Even though the Gillick standard appears to be undefined and arbitrary, the fact that the child’s consent, independent of his/her parents, is considered important is a step in the right direction. Furthermore, as a step to acknowledge the dangers faced by CI, the Council of Europe released the Information Technology Guidelines in 2018, specifically tailored to children using social media. It provides, amongst other things, to recognise the capacity of a child to give consent, allowing the right of a child to be heard, and to establish a database of ‘hashes’ to identify cases of child exploitation.
iii. UNCRC
The UNCRC contains articles that can be read to endow rights on children in a digital environment. Article 3 of the Convention states that any action taken on behalf of a child should be taken with the child’s best interests in mind. Further, as per General Comment 14, any decisions concerning children made by the state should be taken explicitly with their interests in mind. Although the definition of “best interests” has been highly contested, this article can be used to make a case in point for recognising the rights of a child, independent of the child’s parents. This is supplemented by Articles 5 and 12 of the UNCRC. Article 5 uses the phrase “evolving capacities of a child,” implying that states are duty-bound to acknowledge the rights of a child in line with the child’s capacities. Moreover, General Comment 20 to Article 5 acknowledges that evolving capacities are to be realised progressively in tandem with the child’s capacity for decision-making. This implies that as children grow, parents’ decision-making authority diminishes, establishing parents as holders rather than owners of the rights available to children. Furthermore, Article 12 provides a child with the right to be heard. When Articles 3, 5, and 12 are read together, they provide grounds for arguing that the UNCRC mandates that the child’s views be taken into account whenever a decision is made on his/her behalf, provided the child is old enough to make rational decisions. Even otherwise, any decision being made on behalf of a child should keep the child’s interests as the primary consideration.
Further, UNCRC provides general protections that can be extrapolated to the online space. Article 16 of the UNCRC provides that there should be no breach of a child’s privacy or damage to a child’s reputation. This covers two aspects. Firstly, there should be a right to erasure available with a CI, and secondly, any video posted by a parent without the child’s consent should not harm the child’s reputation. Furthermore, Article 32 of the UNCRC provides that a child should be protected from any work that might affect the child’s education or mental and physiological well-being. Significantly, Article 32 refers to work rather than employment, indicating that it will continue to apply even if a formal employment relationship is not established.
Thus, it is evident that several provisions of the UNCRC can be useful in framing laws and regulations to protect CI.
III. A need for Reforms
The Indian regulatory framework is highly inadequate in terms of sufficient protection for CI, as discussed in Part I of the article. The Indian landscape should, firstly, acknowledge the CI’s right to be forgotten without any conditions. This is important because children usually do not have control over the content their parent posts. Further, this would give children some sense of privacy and a right to control their data. Moreover, even though the guidelines issued by the National Commission for Protection of Child Rights (“Guidelines”) currently mandate a fixed number of hours beyond which a child should not work, there is no control or oversight authority to enforce them. Though the state cannot intervene in domestic affairs, it could mandate a work permit that parents must obtain before commercialising their children. The requirement to obtain a work permit should not be universal; it should be imposed only when certain criteria are met. Say, for instance, if a parent posts their child X number of times in a week/month or if the post(s) of the child attract a set number of views or likes. The threshold limit could also be determined by the revenue generated by the child influencer. Further, such a work permit should be renewed monthly to ensure the permit-issuing authority can verify that the parents comply with the regulatory framework. Moreover, it could be made mandatory for the child to undergo monthly physical and mental health checkups to ensure they are not overworked and are enjoying the work they are engaged in. Further, a child specialist could be engaged to have monthly sessions with CI to verify if the parents are engaging the child in any activity against the child’s consent.
Alternatively, the Gillick competency test could be applied in India. When a parent handles a social media account, there should be a mandatory separate form for the concerned child to complete to determine the child’s level of understanding. In cases where it is determined that the child is competent to understand the ramifications of the content being posted, the child’s consent, in addition to that of their parents, should be obtained before the content is made public. Apart from considering the child’s consent, in cases where the parent is found to be violating regulatory safeguards, the state should have an automatic right to intervene, drawing on American jurisprudence and the UNCRC. Additionally, to deter parents and guardians from violating the law, the Act should be amended to impose stricter penalties for such violations.
In addition to protecting inside the house, obligations must be imposed on social media intermediaries. A child’s internet presence poses significant concerns, including the possibility of online abuse and cyberbullying. To prevent this, mechanisms beyond comment filtering are required. There should be strict penalties for engaging in online child abuse or cyberbullying, including bringing such cases within the ambit of the Protection of Children from Sexual Offences Act, 2012. Additionally, to tackle the menace of people directly texting CI, any text sent by an unknown person to a CI should be subjected to strict scrutiny by the online media intermediary. In cases where the text in question is abusive or vulgar in nature, the text should immediately be deleted, and a warning should be issued to the person behind the text message. Moreover, there should be a special warning to viewers in videos/posts involving children that any harmful comment or remark may result in penal consequences, depending on the context and severity. Further, since the videos and images of children can lead to digital kidnapping, appropriate safeguards should be put in place to allow only limited access to the viewers. In the same vein, any reproduction of content involving a child for any purpose without the child’s and/or the parent’s consent should be a punishable offence. Moreover, akin to France, there should be a separate online reporting mechanism for children, enabling speedy redressal of grievances. It is to be noted that all these suggestions are open-ended and could be altered by the relevant authority depending on the facts and circumstances of a case.
IV. Conclusion
Parts I and II of this article analysed the protections accorded to CIs in India. It began by discussing the general risks and the existing regulations to protect CI in India. It highlighted the inefficacy of existing laws and discussed the regulations existing in other countries and the UNCRC for the protection of children. The article then suggested a few reforms in the Indian framework.
The suggestions in the article can serve as a starting point for the legislature to frame appropriate laws and guidelines to provide a safe online space for children. While laws and guidelines would certainly assist in safeguarding children, it is also necessary for parents to acknowledge that children’s rights and dignity are more important than the need to gain fame on social media. The responsibility lies with parents, the legislature, and social media intermediaries to ensure the protection of children. It would be interesting to sepapee when, in India, the peculiar problems faced by CI will be acknowledged and appropriate steps taken by the concerned stakeholders to provide them with a safe and secure online space.
Tanay Khanna is a fifth-year student, and Subhalaxmi Mukherjee is a third-year student, at the West Bengal National University of Juridical Sciences, Kolkata.
NUALS Law Journal 