Children's exposure to digital platforms is now part and parcel of practices that are widely unmarked. Family vlogs, everyday content, family channels: a host of million minors appear every day in content distributed on a large scale, sometimes monetised, without the current legal framework providing effective protection.
If the legislator intervened with the law n°2020-1266 of 19 October 2020 aimed at framing the commercial exploitation of the image of children under the age of sixteen on online platforms, it has to be said that this system is still only partially in place. inoperative.
An existing but incomplete legal framework
The law of 19 October 2020 was a major step forward, extending certain guarantees from the regime for children involved in entertainment to minors involved in online content.
It distinguishes between two situations:
- children employed in the context of an employment relationship, subject to an prior authorisation system and protective obligations reinforced ;
- so-called “grey zone” situations, in which the child appears in content that generates revenues without an employment contract.
It is in this second case that the main difficulties are currently concentrated.
The legislator has provided for a mandatory reporting mechanism when certain thresholds are exceeded, particularly in terms of volume of content or from revenues generated. However, these thresholds must be set by decree by the Conseil d'Etat.
To date, these decrees have still not been published.
As a result, the mechanism provided for by the law exists formally, but cannot be fully applied in practice.
A criterion that is no longer adapted to current uses
Beyond this regulatory gap, the law is based on a central criterion: that of the child as an individual. “main subject” content.
Yet digital usage has changed radically.
The reports received and the situations observed by the Association e-Enfance / 3018 show that children are no longer exposed solely to content that focuses on them. It is now part of hybrid formats, Their presence is diffuse, repeated and integrated into everyday stories.
In these configurations :
- the child appears in background or from on an ad hoc basis ;
- it participates in the narration without being at the centre of it; ;
- its image can nevertheless be used in content with a large audience, sometimes monetised.
These situations currently fall outside the scope of the law, even though they are likely to infringe several of the child's fundamental rights: right to privacy, right to dignity, the right to protection against harm to its development.
A recommendation taken up by the parliamentary mission
As part of the interdepartmental mission entrusted to Arthur Delaporte and Stéphane Vojetta, In response to these findings, the e-Enfance / 3018 Association has put forward proposals to adapt the legal framework to current realities.
These points were explicitly taken up in the mission's final report, which makes the following recommendation:
- take the decrees implementing the law of 19 October 2020 ;
- delete the condition of “main subject”.
This development will make it possible to cover all situations in which the image of a child is broadcast in a generating revenue, regardless of its place in the content.
The best interests of the child: a principle still insufficiently guaranteed
Beyond the shortcomings of the legal framework, the situations observed raise a more fundamental question.
French law, parental authority is exercised in the interests of the child (article 371-1 of the French Civil Code). Internationally, article 3 of the International Convention on the Rights of the Child enshrines the principle that the child's best interests must be a primary consideration in any decision affecting him or her.
However, in the digital environment, this principle comes up against a structural difficulty: children's exposure is largely based on the Internet. the consent of their legal representatives.
When parental consent and logical digital exposure aligned without any control mechanism, the effective guarantee of the child's interests becomes uncertain.
The General Data Protection Regulation recognises the vulnerability minors and frame their consent, but this alone cannot prevent situations in which exposure is decided by the adults themselves.
Effective protection for children online
In view of this, the e-Enfance / 3018 Association is calling for changes to the legal framework enabling guarantee effective protection for minors in online content.
This includes
- the immediate publication decrees implementing the law of 19 October 2020, to make the planned declaration system fully operational; ;
- the delete of the “main subject”, in order to cover all situations in which children are exposed; ;
- one reinforcement the obligations of platforms in terms of prevention, management detection and from management content involving minors, in conjunction with the Digital Services Act ;
- one reflection on the mechanisms that make it possible to guarantee respect for the best interests of children in the digital environment.
For over twenty years, the e-Enfance / 3018 Association has been working to ensure that the Protecting children online is not just a question of principles, but of an effective framework that is adapted to usage and genuinely protective..
