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YouTuber, Twitcher and streamer: the status of child influencers
After child models, actors, fairground workers, and more recently esports players, it will soon be the turn of underage influencers to be protected by the French Labor Code.
In a context of increasingly stringent regulations governing audiovisual content on the internet, marked in particular by the expanded oversight of the CSA (French Broadcasting Authority), the transposition of the Audiovisual Media Services Directive (AVMSD) on the subject, and other factors, legislators are focusing this year on the specific case of underage YouTubers and influencers. These video creators, aged between six and twelve, are generally produced and guided by their parents, siblings, or other family members, and are able to reach a highly sought-after advertising target: children.
Publishing up to several videos a day, their channels offer a glimpse into their daily lives, family moments, leisure activities, challenges, tutorials, and even unboxing videos featuring toys, candy, and other products aimed at their peers.
The sheer scale of this phenomenon is a legitimate cause for concern due to the underlying motivations of the families producing these videos featuring children, sometimes very young. Furthermore, the mass publication of this content raises serious issues of liability, both criminal and civil, with regard to children’s rights, the impact of such practices on their psychological development, and the risks of cyberbullying and even child pornography.
Find our presentation of the associated legal issues here: https://pcs-avocat.com/youtuber-enfants-influenceurs-mineurs-streamer/
Given the sometimes considerable audiences and revenues generated by the producers of this type of video, a bill initiated by Member of Parliament Bruno Studer was finally introduced in the National Assembly at the end of 2019. Adopted unanimously on first reading by the National Assembly on February 12, the bill was adopted on first reading by the Senate on June 25, after some revisions, notably concerning:
- The procedures for depositing income into a Caisse des Dépôts account;
- The procedures for applying sanctions;
- That the charters adopted by the platforms must promote information and awareness among minors about the consequences of sharing their image on their private lives and in terms of psychological and legal risks.
Becoming a minor influencer: a future status modeled on child models and artists
The internet has led to a proliferation of new professions that currently lack specific regulations and are still ignored by the French Labor Code. Indeed, the provisions of the Labor Code do not, a priori, address work on the internet. Article L7124-1 concerns the activities of children engaged in or producing:
- in a performing arts company, whether stationary or itinerant;
- in a film, radio, television, or sound recording company;
- in the context of modeling;
- and, as recently added during the National Digital Republic Act (LRN), in video game competitions and other esports events.
The new legislation aims primarily to better protect children in the face of the existing legal vacuum regarding the regulation of their status and rights. It is true that, as the law stands, there is no specific qualification of these new practices or specific applicable rules, the issue having long been neglected in the texts on the matter, and in particular in the law for a digital Republic of October 7, 2016.
However, this approach can be nuanced, as civil courts already make the necessary assessments, particularly by applying the Labor Code, in the absence of a specific legal framework.
See our previous publication on this topic: https://pcs-avocat.com/enfants-influenceurs-droit-travail-code-loi/
The new legal provisions address this gap by classifying the management of a YouTube channel and, more broadly, the activities of underage influencers as work. By placing them under the same legal framework as children working in the entertainment industry, modeling, or video game and esports competitions, the proposed law includes several obligations:
- A system of individual authorization is required for any “distribution of the image of a child under sixteen years of age by a video-sharing platform service, when the child is the main subject.” Parents are responsible for providing the “competent administrative authority,” specifically a prefectural authorization based on the opinion of an advisory committee.
- More active participation is required from content hosting platforms, which are obligated to inform, monitor, and, if necessary, remove as quickly as possible any practice that is contrary to the law.
The existing system guarantees working conditions compatible with the child’s schooling and health. Furthermore, a portion of the earnings must be deposited with the Caisse des Dépôts et Consignations (French Deposits and Consignments Fund), which manages them until the child reaches the age of majority.
A subsequent decree will specify, in particular, the number of daily and weekly filming hours permitted, the amount of remuneration, and more generally, the child’s working conditions.
Influencer contracts: how to collaborate with underage influencers?
As mentioned, the first change in this new legal framework concerns the obligation for legal guardians to obtain administrative authorizations for their children and to declare all of their activities.
Whether the influencer is an adult or a minor, the contract must include all the essential elements governing the terms of their services:
- The duration of the partnership and its termination conditions;
- The services requested, types of content, format, duration, and their means of distribution and publication;
- The intellectual property and copyrights associated with these videos and their content, particularly in the event of rebroadcasting;
- The respective responsibilities of each contracting party;
- The amounts and forms of compensation for the use of the child’s image;
- Where applicable, the conditions relating to the supervision, monitoring, and safety of the child;
- Any clauses relating to exclusivity or non-competition for the influencer.
For more information on preparing and finalizing influencer contracts, please contact us at px@chomiacdesas.com
Behind the creation and distribution of these videos, one of the major challenges lies in the practice of influencer marketing and the applicable advertising regulations. Regulated since 2004 by the Law for a Digital Republic and the Consumer Code, all online advertising must be clearly identified as such and mention its sponsor.
Compliance with these regulations is ensured in particular by the DGCCRF (French Directorate General for Competition Policy, Consumer Affairs and Fraud Control) and the ARPP (French Advertising Standards Authority), which can impose civil and criminal penalties on those responsible.
It is therefore essential that the influencer contract clearly define the mandatory information regarding the videos and their presentation, especially concerning the funding of their creators.
Droit à l’image des influenceurs mineurs & RGPD
Furthermore, it is important not to overlook the significance of the image of children depicted and the particularly protective regulations surrounding it. Indeed, the image of an identified or identifiable person constitutes personal data, especially with regard to the recent General Data Protection Regulation (GDPR), which includes specific provisions concerning minors.
In fact, Article 8 of the GDPR sets out the conditions applicable to children’s consent regarding information society services, including services such as YouTube, Twitch, Instagram, TikTok, and other audiovisual content platforms. On this last point, the proposed law provides for a generalized right to be forgotten, payable by the platforms upon simple request.
This provision complements the GDPR, which already addresses this situation. This is another element to consider when drafting an influencer contract.
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