Does the law protect young online influencers?

WARNING: Adults might want to listen to this episode before listening with young children, as we mention the words self-harm, suicide, and eating disorders in the context of examples of harmful online content.

What are the legal implications for young people becoming influencers online? What happens if brands offer them sponsorship deals? These activities raise commercial, consent and ownership legal issues.

Alma-Constance and Lucinda speak to Steve Kuncewicz, Partner at Glaisyers Solicitors. Steve is an expert in the law that affects the creative, digital and marketing world and he joined the our hosts to talk about the main legal issues affecting children creators of online content in the UK including:

·      General legal issues affecting online content creators

·      Young people and contracts and sponsorship deals

·      Social media platforms responsibilities and the Online Safety Act 

·      Challenges when parents involve their children in content creation

·      Cases and laws in USA lto protect young online content creators

 When Steve was 10  years old, he said he was geeky and still is! He wanted to be a writer and imagined he would be Batman!

References and Resources

Steve Kuncewicz 

Child Content Creators: What Is Protecting Minors from Exploitation?

Teen Vogue article 2023: Influencer Parents and The Kids Who Had Their Childhood Made Into Content

UCLA Law Review

Child Influencers and Commercial Challenges

Kids Law podcasts on other related topics:

How can laws protect creative works?

How the ICO works to protect children online                           

How young people can be protected online NSPCC perspective

Does the law control when a child can work and get paid for it?

Online Safety Act - what is being done to keep children safe online

If you've got any questions, ideas about a topic or someone to interview, get in touch, we'd love to hear from you!! You can email us at kidslaw@spark21.org, contact us through the website: www.kidslaw.info or through social media: Facebook, X and Instagram @KidsLawInfo

Please subscribe, rate, and share the podcast with your friends.
See you soon in the next episode!

Transcript

 Transcript

WARNING: Adults might want to listen to this episode before listening with young children, as we mention the words self-harm, suicide, and eating disorders in the context of examples of harmful online content.

Hello, I'm Alma Constance. And I'm Lucinda. 

And together in our Kids Love podcast, we're going to look at how laws affect children as we grow up. 

So, what are we going to look at in this episode, Alma Constance? 

Alma

Well, in our recent episode on intellectual property and how it might affect young creators, it got me thinking about young influencers online and what the legal situation is like for them. 

Lucinda.

Great question, Alma. This issue raises a wide range of legal questions. Some young people have gained a huge following, and with this, the chance of sponsorship, which means that they can earn a large amount of money, and also, raises further commercial issues. 

But there are also many situations where parents share photos and videos of their   children online too. And this raises the important question of consent. Let's speak to Steve Kuncewicz, Partner at Glazier's ETL law firm and head of creative, digital and marketing about the main legal issues affecting children creators of online content in the UK.   

Alma

Hello, Steve. Thank you so much for joining us on our Kids Law podcast today. We are so happy to have you here.  

Steve 

A great privilege. Thank you very much, Anna Constance. Thank you. 

Could you just start off by telling us about the type of work you do and your clients? Yeah, I'd love to. So, I am the firm's head of creative digital and marketing. I'm a frustrated creative. I don't have any talent, but I get to work every day with people that do. And it's awesome. I work with lots of different kinds of clients. , the creative and digital and marketing sector plays a really big part in the UK economy, in the Northwest economy, in particular in Manchester, where I work. Although I split my time between Liverpool and London as well. I work with lots of agencies that work with influencers.

I work with influencers directly. I work with businesses that work with influencers.  Very few days are ever normally the same.  Today, one of my clients had a big contract.  That I'm needed to advise on short notice.  We are looking at a number of influencer  agreements at the moment. I've had plenty of days where influencer shoots are going on and people threatened to turn up on set.

So, it's very rarely dull. It's very rarely boring. Although, um, still, I'm not sure my kids, certainly my 13 year old has any idea what I actually do for a living. So maybe he’ll listen to this, and it'll educate him a little bit. 

Alma

So, you mentioned influences and social media. 

Are there any particular legal issues affecting creators of online content on social media platforms?  

Steve 

Yeah, so the issues content creators face are very similar to the issues they’d, if they were creating content offline. Who owns that content? Who's responsible for creating it? But as you're making it available to the wider world, you need to have a think about stuff like data protection, direct marketing law, there is the, regulation of social media that we're trying to, make work in the UK in the online safety act.  And there's lots and lots of different things to think about. Just because you're on the internet doesn't change necessarily your legal liability and sometimes it can increase it because things can go viral in the wrong way.

 So, there are, again, things online tend to just go wrong a little bit more quickly and a little bit more at greater scale and content there regardless of the format, regardless of the tone of it is treated very similarly to the same way as it would be if you were offline. Like I say, it just happens faster. 

Alma

So how are young people involved as online content creators? And are there particular legal issues that affect them especially?

Steve 

Yes, there are. So, there's, I think, a bit of a distinction to be made between younger content creators who decide to do it because it's what they want to do for a living. They just want to create content and get out into the wider world.  But we have also seen lots of families. become a content creators and involve their kids. We saw Ryan, of course, and his toy videos years and years ago.  I've done stuff with the press before about whether or not that's a good thing or a bad thing, what the law is around that.

But increasingly, obviously we've got the influence of apps like TikTok, Facebook. All the usual apps you would think of more often than not, it can start off as a hobby. It can start off as a niche interest, but certainly when you go online now, a lot of the really interesting content is being developed in that niche area in the smaller groups as opposed to out into the wider world.

So, because of that, it's fairly easy to build yourself. A profile is easy to become popular. It's easy to attract attention. My son has a YouTube channel. He's by no means an influencer. He's thinking about becoming a content creator and I've had to sit him down and say, no matter what you do, no matter how well you try and do it, you are going to get some nasty comments, whether, whether you like it or not.

I've tried to prepare him for that. being active on social media, I've seen it myself and I can only imagine what it's like for kids.  The idea is that you are not meant to sign up for social platforms unless you're, Older than 13.  The reason for that is the Information Commission's Office Data Protection Law says that's the age at which you can give consent to the use of your personal data.

You can't enter into contracts earlier than that.  Parents really should be involved in what their kids are doing online, whether or not they're creating content or just interacting with people.  But if things go well. you can generate money pretty quickly.  The platforms monetize your content that can lead sponsorship that can lead to other kinds of opportunities and your parents would have to sign an agreement for you if someone came knocking and wanted to give you a loan of money to what you wanted to do.

Lucinda

Can I ask you to explain how people do make money out of their videos. 

Of course, so influencers still make up large parts of a lot of brands marketing. In particular, micro-influencers. who don't have, say, hundreds of thousands of followers, and they can be kids. they can, depending upon the nature of the deal, they do. It can be a few thousand pounds. It can be hundreds of thousands of pounds depending upon who the influencer is. You can't be a director of a company unless you are 16 years or older. if you were to have shares in that company, there is no age limit for that, but as with that and other kinds of money and property that will be held for you and trust by parents. So, parents have a really key role in that, but we've seen a few examples where families do end up really falling out over this.

There's a question as to whether or not kids are effectively behaving like child actors. You know, we start talking about things like this. child labour law. If you are a child actor, if you're a child performer on a set, then you're protected very specifically under UK law. You're meant to only work for certain amounts of time.

Someone is meant to look after you. Although of course, in this case, the parents will look after you. And again, you were talking about IP. I would imagine you covered this in your other episode. Kids can own IP. There's no reason they can't.  But the question is, what do they own? If they're appearing on camera, then they'll have performance rights.

But of course, Unless they're the ones who are creating that footage, unless they're putting time into it, unless they're maybe involved in the edit, other parts of that creative process, then it may well be that they actually don't own a lot of the content they create. So, the role of the parents is hugely important in this, and certainly the platforms themselves are as well. You know, we've seen a lot of disquiet. I think of a tick tock and its algorithm targeting younger users with eating disorders and so on. We've recently seen Facebook say that they're going to throw out fact checking. Twitter is Twitter, unfortunately, at the moment  and although we have the online safety act, there's still an awful lot of content out there that maybe I wouldn't want my kids accessing.

So, it is a occasionally can be quite scary world. And that's why I think the parents need to know what's going on.  

Alma

So what responsibilities do social media platforms have in relation to young content creators? 

Steve 

Well, the responsibilities they have are to their users in general.  There was an idea a few years ago that we wanted to make the UK, the UK, the safest place in the world to be online. And that's what led to the Online Safety Act that came into force fairly recently.  

Lucinda

And do you think we, there's a realistic prospect of that?

Steve 

 I would love to say yes, but sadly not.  I think the fact is the situation we find ourselves in is social media as a thing has only been around about 20 years in the form we know it, and We are still getting to grips with the fact that what we say online has a real impact on the mental wellbeing of the people that receive content

Online Safety Act introduces a duty of care on social media platforms to ensure that content that could cause them harm doesn't reach them, that they're meant to have risk assessments,  All sorts of measures in place to make sure in particular that kids don't access this kind of content with a particular focus on stuff like child exploitation, , encroachment of suicide, the kind of things that kids have been very unfortunately accessing over the course of the last few years.

But added to that, we have the Information Commissioner's Office Children's Design Code that's meant to help privacy online in the UK. And again, what social media does  I think remains to be seen.  How it's going to be enforced has been a bit of an open question, and we've only recently seen Ofcom, that's the regulator that normally regulates broadcast content, get involved, start putting into place codes of conduct, start telling people how this new law is going to work in practice, and they've made it really, really clear.

If in 2025 social media businesses aren't getting it right, then they are going to face enforcement action. Whether or not they're going to get the kind of huge fines that are potentially payable under the Online Safety Act remains to be seen. Whether or not platforms take their own action remains to be seen. So, it's going to be really interesting to see if the platforms recognize that young content creators now make up a really sizable part of their audience, make up part of their economy and can generate sizable money.  So should be treated.  As they deserve to be. 

Alma

So, we have also discussed in previous episodes, and you've just mentioned the Online Safety Act, have you had any experience of this law working, and what is your view? 

Steve

My view is that anytime you introduce a duty of care that's a legal concept, that's a responsibility that platforms need to take certain action to look after their users, , rather than build a duty of care over time through court decisions.

It's very imprecise and I think that's what we're seeing at the moment in that Ofcom is going to have to work quite hard to explain how this all works, to explain what's expected of platforms.  As a result of where the legislation's up to, we've not yet seen much of an impact on it day to day. I think we are going to do over the course of this year, probably.

but certainly the news is full of terrible stories of kids getting harassed online. Some of them going to the point where they've seen no other option but to take their own life. There's all kinds of studies into the impact that endless scrolling has on mental health. That's nothing new. 

But the platforms do need to be changed. very careful and they will need to comply because the way this law works is that if you are a business, even if you're based abroad and you have enough users in the UK, if you have enough reach in the UK, you're still caught by it. And for those who have higher reach, the likes of Facebook, And the likes of Twitter, for example the more they're going to have to do to comply.

And if they're not careful, then Ofcom can go to court and ask a court to cut off certain functionality. So for example, TikTok shop is one of the most heavily promoted and increasingly heavily used platforms. lots and lots of brands going there, but we've seen over the weekend TikTok be banned in the US for 12 hours until Donald Trump took officethat goes to show you that governments can have an impact on social media platforms when they want to. And if our government, although they've said that they're not going to man TikTok, thought that they weren't complying with the online safety act, then they could potentially look to cut off functionality such as the shop function.

So, if It's going to be really interesting to see how it plays out, but it's just going to take a while before we start to see what the platforms do  to comply with it,  and what kind of enforcement action Ofcom is going to have to take. 

Alma

Some of the videos online are created by parents and feature children. What challenges are there for this type of online content creation?   

Steve 

I think as the influencer market has changed a little bit. I think Ryan, was obviously a leading child influencer. His unboxing videos, his toy videos, led at one point to him having toys in the entertainer.

And in Smith's, you know, he had physical toys on shelves as a result of what he was doing online and his parents I understand were working with him to make sure that, you know, he was provided for the rest of his life. We've seen similar child influencers get into the market. But it can involve an awful lot of money. Content is more easy to monetize than it used to be.  But the kids that appear in these kind of videos don't have the same kind of protection to say a child actor would have on a movie set. , there are legal issues, there are ethical issues. Whether or not you as a parent, would approve of making your kids part of your online footprint is a matter for everybody to make their own decision over.  But. there's an argument that they can't really give their consent to their appearances.  Do they have enough capacity to make informed decisions about what they want to appear in?

They certainly won't have capacity to enter into contracts. And that gets potentially even more fraught when you look at the fact that some of the parents involved almost become managers for their kids. You know, they  oversee social media accounts, negotiate contracts,  produce content themselves to feed into, a profile's content. , A child is helping them to build and sell their brand as much as their own.  There is, of course, the Children Act 1989 and the contents of parental responsibility at work here as well.  That legislation lets adults receive or recover in their own name any property for the benefit of their child.

So the idea would be that any money generated through the child eventually gets back to them. But then parents may say, well, what about my contribution? You know, it's going to be very difficult for a family to sit down and negotiate an agreement about how  their money, is divvied up. But we may start to see disputes about that as kids start to get a little bit older, maybe feel as if they didn't get the right kind of recognition. , interestingly, the University of Sussex earlier this year was calling for reforms and guidelines because their view, , a legal expert  suggested that under existing UK law, child influencers don't appear on platforms in their own right. So, there's lots of protection in place for children as consumers of content. There's nothing much in place for them, to cover them as creators.  They have rights around education, medical decisions, name changes, accessing records, travel consent, legal representation, so on and so on that’s through parental responsibility.  It's complicated. And so is the relationship status when all of a sudden your parents aren't just managing you around the house. They're managing your career as well. 

Have you seen any recent legal cases or trends involving online child content creators and what lessons can be drawn from them?

Steve 

Well, there was a USA Teen Vogue article in 2023 talking about it and there were cases a few years ago.  Again, as the internet is an international repository of content, social media platform, however you want to refer to it, different laws apply around the world. If there was one law that governed the internet, then things would be an awful lot easier, 

So there are laws, not only different laws in the United States, where I think, Child creators are more common.  There are laws in different states within the United States as well. And there's the idea of children's privacy. That's pretty much compromised as soon as they head online. I remember an event I went to about 15 years ago where there was a discussion with a member of Facebook's policy team talking about the fact that when you put a sonogram online, you know, you find it, you're going to have a baby and you put a picture up all of a sudden that child hasn't been born yet. They've got a social media footprint. So imagine what that's like when you're dealing with kids who create content and become influencers.  As long as family content is  making money  but their kids haven't  ability to make decisions about whether they want to appear in it. Is that privacy gone now? Can that child ever get it back? Is that going to be worth the amounts of money you're making? Is that worth the amount of time you're going to invest in that content? The kids get a need, Something to protect them. At least this is the U.S. View.  Congress is looking at that over there.  It's not legislated for it over here. But as the industry continues to grow,  it is something that I think the industry is going to have to get to grips with as much as legislators. Agencies Content promoters, brands, I think we'll need to think really carefully about what they engage with in terms of, content involving kids and the parents should be thinking very carefully about it as well. 

So I have a question I ask all of our guests. What were you like at 10? And what did you imagine you'd go on to be as an adult?  

Steve 

Very similar to what I am now. I was every bit as geeky then. As I am now, normally when I do this kind of thing, we, video over Zoom, I have to cover up the,  the shelves behind me, there's a load of toys on them, I still collect them, I'm 47 years old, go figure, I collect the same one as my son, I'm an even bigger geek now, actually, , What did I imagine I was going to be as an adult?

That's a great question. I wanted to be a writer at one point. I wanted to write scripts.  I've written a few and they're rubbish, which is why I'm a lawyer.  But I, I love what I do. I love an awful lot of people that I work with and it's really interesting stuff.  I suppose the other thing I imagined I would be as an adult would be Batman, but sadly I'm still working on that. 

Well, thank you so much, Steve, for talking to us today. Do you have any final advice for our listeners who want to know more about the topics raised in this episode? 

Steve 

Yeah, if your kids are going to be involved in social media, you need to be involved in what they're doing on social media, whether or not that be just, , interacting with people or whether or not that's creating content. , there are a lot of complex issues around law and social media. And if your content gets that child into trouble, that trouble ultimately find its way back onto your doorstep as well.  The internet's all about moving fast and breaking things. Moving fast and creating content is one thing, but breaking your relationship with your child and breaking that child's relationship with the wider world  is a real risk and something you should take really seriously. Everybody realizes it's an issue yet there are very few people doing much about it. So, I was doing something with the BBC last Monday about,  getting access to social media accounts for children who took their own lives.  So, social media is part of your everyday life now, it's also becoming part of the way we die. And.  we can't turn away from it. You know, kids want to create content.  All of a sudden kids have devices in their hands and I'm as guilty as anyone.  My 13 year old son has had access to an iPad, as long as I can remember, you know,  it kept him used, it kept him learning, all these other kind of things, but you thought really, Carefully about that.He games, but I approve every single connection he makes online, even if he's playing something like a multiplayer online role playing game.  It's tough, you know, all of a sudden kids are walking out there and it can be quite a scary place and I think it's going to be that way for a little while yet. It's got potential to be fantastic but like anything else, you know, you wouldn't let your kids walk around a dark street at night without holding their hand and I think people have to take that approach online as well.  

Alma

I think it's so interesting how you're talking about how parents, they have to take the approach of letting their children walk out in the dark on the street in alleyway, an alleyway all alone, and they have to hold their hand then. But I, when I look at it, My  I mean, on Instagram and I'm not on those. t's a massive distraction. Their parents aren't really aware of the dangers sometimes. I mean, I've got a friend, she was on TikTok at the age of six. The moment they came out, I mean That's, that's, that's insane. The amount of things that's fed to her, for example, and to all of the people I know,  

there's an accumulation of all of this content that it's really inappropriate for our age. I mean, and it's fed to us all the time.

Lucinda

We spoke to previous contributors and it's the, the algorithm that pushes you further and further down certain routes which is so, seems to me to be so harmful.

Obviously, there's a question of access, full stop and, somebody, literally keeping an eye on you, and that's difficult as a parent, but you have to take on board that responsibility.  You, you do, you really do.   It's gonna be interesting to see the way TikTok goes.  Now that it's not being banned in the States, now that the UK made it clear that they're not it over here, but like you say, the thing about this is, I think that law, tech moves faster than law and tech moves faster than ethics and tech sometimes moves faster than family dynamics. Which is another reason why, you know, you should at least have an idea what your kids are watching,  We see very often kids will say, I want to be a YouTuber when I grow up. So I think from my perspective, I thought the questions were great and were really, really good jumping off point for the discussion. And I think it's, it's an important set of  issues to raise. It's been an absolute delight to meet you both. Thank you for coming on. Thank you so much.  Bye-Bye.  

Lucinda 

That's great. That's a great whistle stop tour.  So, Alma, what did you think about what Steve told us?

 Well, nowadays, we see more and more children as online content creators all over social media platforms, such as TikTok or YouTube, where they share their ideas and hobbies.

But because of advertisers and sponsors becoming involved, there can be repercussions and issues of ownership and rights to their products and content.  What really stood out for me was the importance of parents being involved in this and the question of conflicts between traditional parent responsibility and if money becomes involved, particularly if the children are very young. Parents would be managers of their gains.   

With the new Online Safety Act being put into practice, companies and platforms have to make sure they comply with the regulations and the safety measures that have been created to ensure protection and social welfare online. 

It was interesting that Steve said that politicians had wanted to make the UK a very safe space for children online. But of course, the problem is that the internet reaches across the world and social media organizations are huge and have profitability at their core. 

Steve told us that tech developments move very fast and so laws and regulations will have to continue to catch up.  And it will be very interesting to see how they are  enforced.  In our podcast, we've been exploring how laws work and affect young people. All of these things, all of these things help children understand their rights and responsibilities so that they can make informed decisions, not only about their lives, but also about voting for MPs who make the laws and help them understand how the legal justice system works. 

It's also important that children know they should be kept safe and that adults must care for them. Remember, if you have any worries, talk to an adult you trust and tell them how you feel. This includes your teachers at school who are there to look after you too, so tell them that you need to talk to them. 

You can call Childline on 0800 1111 if you're under 18 and want free confidential advice. You can find more information on kidslaw. info website.  Keep your questions coming in. Please subscribe, rate, and share the podcast with your friends. See you soon in the next episode! 

Bye