From Playtime to Pay Cheque: Safeguarding Child Content Creators from Exploitation

Daniel Bowtell

As social media continues to rise in prominence, we are witnessing a burgeoning trend: child content creators. This unique demographic has stormed the virtual world, becoming influencers on platforms such as Tiktok, YouTube, and Instagram. Although this rise presents novel opportunities, it also ushers in complex ethical and legal considerations that require careful scrutiny. The surge in child content creators has exposed the limitations of existing legislation that is primarily designed to safeguard children in traditional entertainment industry roles. Although, should legislative reform be introduced, it will face challenges with enforceability in domestic settings.

Parent-Directed vs. Child-Directed Content Creation

The domain of child content creation primarily embraces two paradigms: parent-directed and childdirected content. The primary difference between these two paradigms is whether or not parents pressure their children to produce social media content. Parent-directed content creation involves children (‘kidfluencers’) as the protagonists, whilst their parents direct the child behind the scenes instructing the child what to do and say. On YouTube, parent-directed content is dominated by child-led toy reviews, like Ryan’s World or nuclear family video blogs. Parents commonly will upload videos of their child playing and acting to generate revenue through affiliate programs or brand sponsorships. Conversely, child-directed content creation generally involves a child protagonist who posts and manages their own social media accounts of their own volition, without their parents pressuring them to create social media content. Child-directed content lacks a parent providing direction behind the camera (akin to a Hollywood set). Instead, it frequently exhibits children engaged in everyday recreational activities such as video gaming, engaging with viral trends, and video blogging their life adventures. These activities may appear spontaneous and unscripted, providing viewers with an authentic, relatable, and engaging experience.

The Deficiency of the Current Legislative Framework

The Children’s Guardian Act 2019 (NSW) (‘the Act’) and the Children’s Guardian Regulation 2022 (NSW) (‘the Regulation’) provide the foundation to protect children from exploitation in the workplace. Part 7 of the Regulation covers the legalities of child employment in New South Wales from private employers. The Regulation effectively protects children employed in the entertainment industry, including film, television, photography, and modelling. However, r 53 of the Regulation (as empowered by s 91 of the Act) does not extend to protect child content creators on social media as the social media company nor their parents are considered to employ them. Instead, for a child’s employment through social media to be recognised, there has to be either an employment contract, an agreement to pay a sum of money for participating in an activity, or an individualised declaration from the Children’s Guardian stating that a child is employed. Hence, the existing regulations’ limitations allow child content creators to circumvent legislation designed to safeguard them from exploitation. Subsequently, the enforcement of essential child working rights, such as the provision of a minimum wage, restriction on employment hours, and assurances of minimum rest breaks, becomes infeasible as no party to the child content creator owes a duty to comply with child employment legislation.

An Intensifying Barrage of Predicaments

The growing prevalence of child content creators presents an intricate problem, interlacing various complex issues such as precarious financial management, potential exploitation, and the worrying absence of assured employment rights. On one hand, the digital age has empowered children to tap into their creativity and reach an audience of millions, far exceeding the viewership of ABC News or Nine News. However, the children’s unprecedented fortune growth through excessive online virality raises critical concerns about their financial protection.

The involvement of parents poses a financial dilemma. While they often play an integral part in a child’s escapade into content creation, concerns arise about handling the income generated, especially in parent-directed paradigms. Unlike forms of child actor protection in the United States, known as the Coogan Law, where a mandated proportion of earnings are held in trust for the child until they turn eighteen, the digital sphere internationally offers no such protection. Generally, in parent-directed paradigms, parents will have complete control over the financial transactions associated with their child’s content creation, leading to a potential avenue of misuse or misappropriation of the funds intended for the child. Without concrete legal safeguards providing checks and balances on child content creator accounts, children may be exposed to potential exploitation or receive no financial benefit from their labour.

Attempting to Solve the Unsolvable Riddle

Internationally there are limited laws regulating child content creators beyond user policies implemented by social media companies. In 2020, France was one of the first jurisdictions to pass legislation affording the same protection given to child models and actors through their earnings being held in a separate bank account until they turn sixteen. However, concern remains about the child’s privacy and their consent to have footage of themselves uploaded online in the parent-direct paradigm. In 2023, France is considering introducing laws to forbid parents from sharing videos and photos of their children to earn money without the child’s consent.

Moreover, irrespective of the efforts to protect child content creators, the legislation alone is not the panacea to safeguard children in parent-directed paradigms. Should legislation in New South Wales be enacted which provides a minimum wage, restricts lengths of performing and assures breaks, its enforceability would topple its effectiveness. Concerns with enforceability raise various critical questions; for instance, how can a child as young as three distinguish whether it is inappropriate to be compelled by their parents to function in front of the camera? How can we differentiate between a child’s ‘play’ and ‘work’ when they are the protagonist of the social media account? Henceforth, enforcing any newly enacted legislation becomes incredibly challenging in the privacy of a home, where monitoring compliance with laws is problematic. Should parents be asked to track and report hours spent in content creation as if it were an official job? Would this not run the risk of the State infringing upon family life and privacy? Furthermore, if a dispute arose concerning the child’s working conditions, how would it be resolved? This dynamic is further complicated when considering the potential power imbalances between parents and children.

Conclusion

The ascension and prevalence of child content creators mark a seismic shift in our digital landscape. As we navigate the growth and influence of social media, it is imperative to protect and promote the well-being of these ‘kidfluencers’. The Regulation in New South Wales, established in a pre-digital era, must evolve to grapple with the unique challenges posed by this rapidly growing social media age. Child content creators have been operating in spaces unanticipated by existing laws for numerous years, with vital reforms necessary to ensure a safe and nurturing environment for child content creators.