Kidfluencers are not a new concept – for years, families have been sharing their private lives (including those of their children) online – sometimes as early as the day of the child’s birth. Yet, there is no clear legal framework for the protection of kidfluencers in the UK.
Kidfluencers – who and what?
Kidfluencers are children who feature in social media online content often earning an income via sponsorship deals and partnerships.
These young kidfluencers, often under the age of 16, have large followings and have the ability to influencer consumer behaviour – falling squarely within the ASA’s definition of an influencer: “any human, animal or virtually produced persona that is active on any online social media platform”. That said, the industry is still largely unregulated in the UK. This is despite the UK Government’s 2022 influencer report on influencing which it highlighted the need for action to be taken to provide protections for children in the kidfluencer space – we are still waiting for guidance.
Current landscape
Most social media platforms require users to be at least 13 years old to create accounts and therefore many accounts are managed by the parents or guardians of the kidfluencers – or the child features in the content on the parent, joint or family account.
Kidfluencers are not protected by the UK’s child labour laws; at the date of this article, user generated content is not included and thus child influencers represent a grey area in the law. Child employment in England is covered by the Children and Young Persons Act 1933, which empowers Local Authorities to set byelaws in their jurisdiction – this includes restrictions on working hours and travelling abroad to perform. Yet, these rules do not extent to user generated content, despite social media content arguably being more invasive and less structured. Kidfluencers lack the legal right to earnings they generate, safe working conditions and other legal protections; it is entirely dependent on the management by the parent or guardian. There is therefore a risk of exploitation.
The Online Safety Act and Digital Services Act have increased protections for children as viewers or consumer of content, but there remains an absence of protection for kidfluencers creating the content.
Advertising Standards
The Advertising Standards Authority (ASA) in the UK has set guidelines for all influencers, including kidfluencers. However, these guidelines focus on the consumers receiving the content and how content should be labelled and delivered – rather than the actual protections of the influencer themselves. The guidelines do not specifically deal with protections required for kidfluencers.
Privacy concerns
Many concerns have been raised about the level of exposure kidfluencing can bring to the child, including privacy and security concerns. Data protection laws offers some protection for children’s data, but the enforcement of these regulations in the context of social media platforms is not without challenge. Kidfluencers or their parents often share their private lives online, which could be exploited by third parties for various purposes.
Intellectual property
A minor who is the author of a work in which copyright subsists under UK law will generally be its first owner. This means that if the kidfluencer has filmed or captured the content itself, they will own the content. Conversely, if the parent has recorded the content, the parent will own the content. The owner of the content can control and exploit that content. This is the legal starting point – this can change if there is a corporate structure in place.
Guidance on kidfluencers – still waiting
It has been three years since the UK Government’s report highlighting this grey area in the law where children are without protection. Ultimately, at present, kidfluencers depend on their parent or guardian to protect them. Some of the suggestions for addressing this grey area included extending the existing UK child performance regulations to include user generated content – which would empower Local Authorities to issue licenses for child influencers.
Positively, in academia, there is a project that has been undertaken which is launching a digital safeguarding toolkit in May this year. It will be interesting to review the toolkit and to assess what impact it might have on the current kidfluencer landscape.