Minors who are influencers on social media and video platforms have been subject to legal supervision since
Act No. 2020-1266 of 19 October 2020. This latest text provides a more specific framework for the commercial exploitation of images of children under the age of sixteen on online platforms and will come into force on 19 April 2021. The legal framework applicable to them is now included in Articles L7124-1 et seq. of the Labour Code. Let us take a look back at this welcome legal development.
A wide range of applications:
The scope of the text concerns children under the age of 16: – whose activity falls within the scope of an employment relationship, – or whose image is used for distribution on a video-sharing platform service, when the child is the main subject and when the duration or income received exceeds a threshold set by the Council of State.
It can therefore be concluded that the law applies both to the activities of child influencers within the framework of an employment relationship and outside it.
Operating rules: declarations, prior authorisations and recommendations:
Prior individual authorisation from the administrative authority is required for child influencers whose activity is considered to be work:
Article 1 of the Law of 19 October 2020 amends Article L7124-1 of the Labour Code by now requiring that «a child under the age of 16 may not, without prior individual authorisation granted by the administrative authority, be hired or produced:
– «[...] in a sound recording or audiovisual recording company, regardless of the means of communication to the public; – by an employer whose activity consists of making audiovisual recordings whose main subject is a child under the age of sixteen, with a view to broadcasting them for profit on a video-sharing platform service».
This provision is largely aimed at child influencers on social media, in addition to child models, performers and advertising models, who were already covered by this provision.
A prior declaration to the administrative authority for child influencers whose activity does not fall within the scope of an employment relationship:
Article 3 establishes the requirement for legal representatives to notify the administrative authority of «the dissemination of an image of a child under the age of 16 on a video-sharing platform service, when the child is the main subject». This notification is required when:
– the cumulative duration or number of such content exceeds, over a given period of time, a threshold set by decree of the Council of State; – the dissemination of such content generates, for the benefit of the person responsible for its creation, production or dissemination, direct or indirect income exceeding a threshold set by decree of the Council of State.
Recommendations to legal representatives:
The administrative authority makes recommendations to legal representatives concerning the consequences of disseminating images of children, financial obligations, schedules, duration, hygiene, safety conditions for filming, risks associated with dissemination, and possible arrangements for normal school attendance. These recommendations are listed in two cases:
– Authorisation has been given within the framework of an employment relationship for the production of audiovisual recordings of children under the age of 16, with a view to dissemination for profit on a video-sharing platform service; – The dissemination of images of child influencers on a video-sharing platform service does not fall within the scope of an employment relationship.
The right to be forgotten online:
Article 6 of the law of 19 October 2020 establishes a right to the erasure of personal data that does not require the consent of those with parental authority. Video-sharing platforms are therefore obliged to remove content when requested to do so by a child influencer.
They also have other obligations, listed below: – Removal of content in the absence of prior notification (Article 2). – Identification of audiovisual content featuring children under the age of 16 (Article 2). – Adoption of charters to promote user information and awareness (Article 4).
– Preventing the commercial processing of audiovisual content featuring minors (Article 4). – Improving the detection of content that undermines the dignity and physical or moral integrity of minors under the age of 16 (Article 4). – Facilitating the right to erasure of personal data (Article 4).
Financial obligations of legal representatives:
With regard to child influencers whose activity is considered work:
Article L7124-9 of the Labour Code sets out the terms and conditions relating to the remuneration received by these children. Their remuneration is divided into two parts: – one part of the remuneration received by the child may be left at the disposal of their legal representatives,
– the other part is paid into the Caisse des dépôts et consignations (Deposits and Consignments Fund) and managed by this fund until the child reaches the age of majority or is emancipated. Withdrawals may be authorised in urgent and exceptional cases.
With regard to child influencers whose activity does not fall within the scope of an employment relationship:
The latter see their remuneration divided into two parts: – the portion of direct and indirect income derived from the distribution of content – which exceeds the threshold set by decree of the Council of State – is paid into the Caisse des dépôts et consignations (Deposits and Consignments Fund) and managed by this fund until the child reaches the age of majority or is emancipated.
– a portion of the income, determined by the competent authority, may be left at the disposal of the legal representatives. Here again, deductions may be authorised in urgent and exceptional cases.
Finally, please note that in the event of non-compliance with the above obligations, a fine of €75,000 is imposed pursuant to Article L 7124-22 et seq. of the Labour Code.
