INTRODUCTION AND DEFINITION OF THE ISSUE
In the age of social media, children do not have the same privacy at home as previous generations. Imagine a child growing up in 2023, going to school, playing with friends, and getting into fights with siblings and parents. Picture the temper tantrums thrown, the tears and screams, or the child falling and getting injured learning to ride a bike. At first, the child might not be aware their parents are filming them. However, as they grow older, the child will inevitably learn that throughout their entire childhood, their parents were filming and posting these videos, without consent, online for millions of strangers to view. If you were the child, would you feel embarrassed, feel like your privacy had been violated? Would you expect, if your parents had been profiting from these videos, to receive a cut of the earnings when you grow up? Would you be shocked when you learned the law was silent in protecting your youth in this process?
This is the reality for more and more children as parents find money and success in the online sphere of family and mommy vlogging. Tempted by fame and financial freedom,many parents have filmed and posted their children online, all while the law has failed to protect our most vulnerable population. “Social media influencers who market video content of their families, or ‘vloggers’ can profit from the personal property rights of their children without restriction. Some children are filmed, with highly personal details of their lives shared on the internet for compensation, from birth.” In addition to the potential extreme loss of privacy, these children receive no payment or financial security for the use of their name or image. Where children are not protected under federal labor or child actor laws, nor protected under comprehensive legislation designed specifically for social media, they are vulnerable to working every day without any salary guarantees and can be exploited by their parents without their consent.
This note will first look at the modest protections in California protecting child actors, including maximum working hours, school mandates, required permission from the labor commissioner to work, and a mandatory trust created for the child. In light of courts’ refusal to apply the Coogan Law to social media, this note will instead look to how France, with stronger privacy laws already in place, has dealt with this exact issue to protect children. Lastly, this note will suggest potential paths towards protection for these children, whose parents include them in their social media content. These will range from changes in how we protect a child’s right of publicity and protect their likeness to, in a post-Dobbs America, ways the federal legislature might be able to pass laws under the Commerce Clause to regulate the use of children in a parent’s social media content. The last option this note will propose is, in the absence of comprehensive federal legislation, for individual social media platforms to update their terms and conditions and implement more stringent policies when children are involved.
BACKGROUND: DESCRIPTION OF THE HISTORICAL DEVELOPMENT OF THE LAW
The Need for Privacy and Labor Protections for Children of “Mommy Vloggers”
The home is supposed to be the most private place, but family and mommy vloggers are putting the most intimate parts of their children’s lives online for views, fame, and monetary gain. Children rely on their parents to protect them and act in their best interest. However, there are many instances of influencer parents who decide to pull harmful pranks on their children or share private moments and conversations, from potty training to talking about sex. There are currently no federal laws in the U.S. protecting these private moments and no policy regulations from YouTube preventing this content from being posted on its platform.
One example of this lack of privacy surrounds potty training. A mommy influencer, who posted about her parenting journey, shared frequent updates of her toddler as he was going through potty training. Details of his progress and experience were shared to over 1 million Instagram followers via the mother’s stories. The mother, seemingly caring more about sharing her parenting journey and making money as an influencer than her child’s discomfort, notes her child’s request for privacy from his parents when he was going to the bathroom. It can be assumed if this young child, who likely had no concept of the internet, wanted privacy from his own parents when going to the bathroom, he would also want privacy from strangers on the internet during this vulnerable and private point in his life. This is just one example of mommy vloggers’ sharing private moments in the home for views, despite a clear want for privacy from their children.