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Child Labour and Online Protection in a World of Influencers

Article in SSRN Electronic Journal · January 2019

DOI: 10.2139/ssrn.3458379

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 Child labour and online
protection in a world of
influencers
By Professor Simone van der Hof, Dr Valerie Verdoodt and Dr Mark Leiser

1. INTRODUCTION
As branding evolved into the dominant advertising mechanism of the latter half of the 20th
Century, so too have the very people tasked with promoting goods and services. Once
consigned to a discrete location on the inside of a garment, labels moved to a far more
prominent position, usually as the focal point of the garment. Marketing slogans like Nike’s
‘Just Do it’ did not just move the brand front and centre, but embraced celebrity culture as the
means for changing the way society viewed a product. However, recently the influencer
phenomenon has helped relative unknowns surpass celebrities as the most efficient way of
facilitating marketing campaigns in the 21st Century. With significant numbers of engaged
supporters, followers, and fans, influencers represent far more effectual means of distribution
than traditional channels.
Entrepreneurs and businesses benefit dramatically if they can successfully drive customers to
jump on a ‘brand bandwagon’. This occurs when small shifts in consumer awareness lead to
large ones as the hype and momentum surrounding a product or service begins to swell. Not
only did advertisers use celebrity endorsement to gain credibility and build anticipation, the
stock of labour used to do this work changed. As influencer advertising has far less labour
protection than traditional marketing, child rights organizations have expressed concerns
about this new form of digital advertising that primarily relies on children as marketers.1 To
date, there has been almost no discourse among regulators about the responsibility of brands
when the influencer is a child. On the one hand, the economic activities of child influencers
can be interpreted as a form of commercial exploitation, covered by international child rights
law as well as national labour laws. These laws aim to protect children from being unjustly
manipulated for the economic benefit of commercial actors, including advertisers. On the other
hand, the act of influencing is participatory, a form of free expression, and an important social
activity for children in the digital landscape.

1Center for Digital Democracy, ‘Federal Trade Commission Must Stop “Influencer” Marketing Targeting
Kids on YouTube and Other Digital Sites’ (Center for Digital Democracy, 21 October 2016)
<https://www.democraticmedia.org/filing/federal-trade-commission-must-stop-influencer-
marketing-targeting-kids-youtube-and-other> accessed 09 April 2019; Unicef, ‘Children and Digital
Marketing: Rights, risks and responsibilities’ (Unicef, April 2018)
<https://www.unicef.org/csr/css/Children_and_Digital_Marketing_-
_Rights_Risks_and_Responsibilities.pdf> accessed 09 April 2019; Isabel Pedersen and Kristen
Aspevig, ‘Being Jacob: Young Children, Automedial Subjectivity, and Child Social Media Influencers’
(2018) 21(2) M/C Journal <http://www.journal.media-
culture.org.au/index.php/mcjournal/article/view/1352> accessed 10 April 2019.

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A typical influencer creates content and shares it to their followers on a blog or social media
platform. The influencer promotes goods or services in order to gain the attention of brands or
influencer agencies. If considered to have a high enough level of ‘social influence’, the brand
will engage the influencer hoping to ride on their coattails of influence to facilitate a
bandwagon. The brand will either pay the influencer in cash, through an affiliate marketing
arrangement, or by payment in kind; brands will send free products to influencers in order to
create more content and share links relating to the brand. In some rare instances, the
influencer has their own product line and uses similar approaches to direct followers to their
own branded merchandise. Most regulatory developments in this field are limited to updating
advertising and marketing codes to reflect principles of disclosure and transparency in
influencer campaigns to continue to allow buyers to make informed decisions.
This raises interesting questions about the need for additional regulatory frameworks to
protect child influencers. A routine aspect of adolescence in the digital era is participating and
consuming media produced by online communities of friends and strangers alike. Today’s
youth often use platforms to vlog, socialise, promote, communicate, consume, and share.
Recognising the importance of online interaction to a child’s development, requires
differentiating between child participation in online hobbies and the need for child protection,
especially in interactions between child influencers and other children. Children have been
identified as particularly vulnerable to online manipulation, yet their welfare is rarely
considered by technology and advertising companies.2 Furthermore, as influencers can often
use attention-seeking behaviour in attempts to attract awareness from businesses and brands,
their endeavours can lead to social backlash,3 mental health issues,4 and even detention.5
With brands increasingly relying on child influencers to do the work of marketing their goods
and services for them, a thorough review of the benefits and potential harms to the child are
urgently required. Thus, this chapter takes a novel approach to the regulation and protection
of child influencers. In addition to critiquing the advertising and marketing rules for gaps,
shortcomings and failures in child influencer regulation in the United Kingdom, The
Netherlands, and Belgium, we also examine the role of the child in the constellation of
influencer regulation through the lens of labour law and protection of vulnerable consumers.
The research is conducted from a children’s rights perspective.

2 UK House of Lords, Growing up with the internet (Communications Committee report, 2017).
3 E.g. when one of the most famous YouTubers, PewDiePie, began to promote anti-Semitism in his
videos, he received widespread criticism as many viewers felt he was crossing a line so far that no excuse
could support the justification, see Aja Romano, ‘YouTube’s most popular user amplified anti-Semitic
rhetoric. Again.’ (Vox, 13 December 2018) < https://www.vox.com/2018/12/13/18136253/pewdiepie-
vs-tseries-links-to-white-supremacist-alt-right-redpill> accessed 7 August 2019.
4 E.g. BBC, ‘YouTube influencers: Inside the weird world of social media burnout’ (BBC, 10 January

2019) https://www.bbc.com/news/av/technology-46816928/youtube-influencers-inside-the-weird-
world-of-social-media-burnout> accessed 7 August 2019.
5 E.g. the arrest of Marcella Zoia, an Instagram model who threw a chair from the 45th floor of a

skyscraper in Toronto - narrowly missing cars and passersby below. See Neal Baker, ‘Shocking moment
Instagram model, 19, throws chairs from 45th floor balcony onto busy Toronto street’ (The Sun, 14
February 2019) <https://www.thesun.co.uk/news/8423838/instagram-marcella-zoia-chair-throw-
video-toronto/> accessed 7 August 2019.

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2. RIGHTS OF THE CHILD INFLUENCER AND VIEWER
Since the adoption of the UN Convention on the Rights of the Child (CRC), there is general
agreement that children's rights in the digital environment deserve considerable attention.6 A
children’s rights approach is underpinned by the general principles of the CRC, which guide
the interpretation of the rights in practice.7 Moreover, it embodies the multidimensionality of
the children’s rights framework and balances the different dimensions of protection,
empowerment and provision.8 Children’s rights and principles form the analytical framework
for evaluating the existing regulatory protections for children in the digital environment.
Therefore, our chapter first discusses how child influencer work can support or neglect
children’s rights and principles, and what standards for the regulatory framework for
commercial communication can be extracted. The second part of our chapter will then analyse
whether the broader regulatory framework for commercial communication (i.e. the advertising
and marketing rules) reflects these standards in the context of child influencer marketing.
Finally, the chapter turns to labour law for additional safeguards for child influencers.

2.1 Guiding principles influencing the interpretation of children’s

rights
Four guiding principles form the basis of interpretation and implementation of the (other)
rights in the CRC.9 These ‘four pillars’ encompass the principle of non-discrimination (Article
2), the right to life, survival and development (Article 6), the right to be heard (Article 12) and
the best interest of the child (Article 3). The principle of non-discrimination requires State
Parties to ‘respect and ensure the rights set forth in the convention to each child within their
jurisdiction without discrimination of any kind.’
In fulfilling these rights, States are permitted to treat children differently; for example, the law
can mandate additional protective measures for children considered more vulnerable than
those capable of recognising and critically reflecting on marketing strategies. States, thus, have
an obligation to identify individual children and groups of children whose fulfilments of rights
demands special attention.10 Accordingly, different rules for children of different ages can be
found in both advertising regulation and child labour without amounting to age
discrimination. The right to development obliges States to ensure the conditions for a child’s
optimal development. The right must, according to the CRC Committee, be ‘interpret(ed) in its
broadest sense as a holistic concept, embracing the child’s physical, mental, spiritual, moral,
psychological and social development.’11

6 Eva Lievens, ‘A Children’s Rights Perspective on the Responsibility of Social Network Site Providers’
(Econstore, 2014) <https://www.econstor.eu/bitstream/10419/101441/1/795276834.pdf> accessed 7
August 2019.
7 General UN Committee on the Rights of the Child, ‘General Comment No. 5 (2003) General Measures

of Implementation of the Convention on the Rights of the Child (Arts. 4, 42 and 44, Para. 6)’ (2003) 4.
8 The three p’s can be used as conceptual lenses for regulation, in order to ensure a balanced approach.

Simone van der Hof, ‘I Agree, or Do I: A Rights-Based Analysis of the Law on Children’s Consent in the
Digital World’ (2016) 34 Wis. Int’l LJ 409.
9 General UN Committee on the Rights of the Child (fn 7) 12.

10 Ibid.

11 Ibid.

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The stages of a child’s development underpin rules protecting children from targeted
marketing and various forms of child labour. The law promulgates different rules for different
ages depending on the evolving capacities of children12, or the likeliness of harm to a child’s
physical, mental, spiritual, moral, psychological or social development.
The right to be heard13 entails a substantive right of children who are capable of forming views
to express those views freely and an obligation to take the views of children into consideration
in any decision concerning them to allow them to participate as part of a free and open
society.14 The UN Committee on the Rights of the Child has called for states to ‘adopt a national
coordinating framework with a clear mandate and sufficient authority to coordinate all
activities related to children’s rights and digital media and ICTs at cross-sectoral, national,
regional and local levels and facilitate international cooperation.’15
As part of its Strategy on the Rights of the Child, the Council of Europe adopted a
Recommendation for member states on Guidelines to respect, protect and fulfil the rights of
the child in the digital environment.16 The right to be heard should ‘enhance opportunities for
them to express themselves through ICTs as a complement to face-to-face participation’.17
Interestingly enough, a child working as a social media influencer may participate in the digital
world in ways which may positively influence their self-esteem and further their skills. This
general principle, alongside a child’s right to express themselves freely in all matters affecting
them, are pivotal to understanding children working as social media influencers. As children
have the same rights of expression as adults, the distinction between
participation/development and child labour becomes somewhat blurred. Children delivering
newspapers or stocking shelves in a supermarket would mostly pose issues relating to labour
protections,18 while for a child working as an influencer the rights of expression would be
equally relevant as labour protection.
Article 3 of the CRC outlines what the best interest of the child entails: ‘In all actions
concerning children, whether undertaken by public or private social welfare institutions,
courts of law, administrative authorities or legislative bodies, the best interests of the child
shall be a primary consideration’.19

12 Article 5 CRC.
13 Article 12 CRC.
14 Aislin Parks, Children and International Human Rights Law: The Right of the Child to be

Heard (Routledge 2013).

15 UN Committee on the Rights of the Child, ‘Report of the 2014 Day of General Discussion "Digital

Media and Children’s Rights"’ (United Nations Human Rights Office of the High Commissioner, 2014)
<http://www.ohchr.org/Documents/HRBodies/CRC/Discussions/2014/DGD_report.pdf> accessed 8
August 2019.
16 Council of Europe, ‘Guidelines to respect, protect and fulfil the rights of the child in the digital

environment’ (Council of Europe, 2018) <https://rm.coe.int/guidelines-to-respect-protect-and-fulfil-

the-rights-of-the-child-in-th/16808d881a> accessed 8 August 2019.
17 Ibid, 13.

18 Two rather popular forms of child work for 13-year old respectively 15-16-year-old teens in the

Netherlands, Belgium and the United Kingdom.

19 Article 3 CRC.

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This principle must be interpreted on case-by-case basis to allow for flexibility and
adaptability.20 However, because of its vagueness, the principle actually provides little
guidance and can be easily overlooked or outright ignored. This is particularly concerning in a
digital world where the interests of commercial actors often counter and trump those of
children.21

2.2 Rights allowing children to participate online (and exercise

influence)
Article 6 CRC (right to development) has an important participatory dimension. The exercise
of participation rights encourages and allows children to show agency in society and develop
their capacities so as to become competent and responsible adults. The right to be heard — as
the most prominent participation right —clearly interrelates with and reinforces the right to
development of children.22 Influencer work has many aspects that tie in with development and
participation rights of children by allowing children to advance various skills — creatively,
technically and socially — by participating in the digital world. Children can learn much from
creating vlogs: developing a script, editing and uploading videos and interacting with reactions
to their work. Even getting annoying remarks can — within certain limits — be instructive. In
addition, influencer work can be enlightening. It can increase understanding of commercial
processes, develop reputation building, encourage entrepreneurialism, and business
development.
Furthermore, Article 13 CRC require States ensure children can speak freely:
Children have the right to get and share information, as long as the information is not
damaging to them or others. In exercising the right to freedom of expression, children
have the responsibility to also respect the rights, freedoms and reputations of others.
The freedom of expression includes the right to share information in any way they
choose, including by talking, drawing or writing.
While this principle ensures that vlogging and influencing remain protected activities, it also
requires children to be mindful of others. It requires thoughtfulness, respect and the obligation
to listen to others.
Children also have a fundamental right to play.23 Play — even in digital form — has an
important function in a child’s development. However, the commercialisation of child’s play -
in the sense that advertising and marketing is increasingly integrated into children’s play
experiences - has been on the international policy agenda for some time.24 Children often do
not recognise the commercial nature of advertisements, nor have the maturity or the

20 Karin Arts, ‘Twenty-five years of the United Nations Convention on the Rights of the Child:
Achievements and challenges’ (2014) 61(3) Netherlands International Law Review 267, 279
<http://journals.cambridge.org/abstract_S0165070X14001272> accessed 8 August 2019; UN
Committee on the Rights of the Child, ‘General Comment No. 14 (2013) on the Rights of the Child to
Have His or Her Best Interests Taken as a Primary Consideration’ (Refworld, 2013) para. 32,
<https://www.refworld.org/docid/51a84b5e4.html> accessed 8 August 2019.
21 Van der Hof (fn 8).

22 Ibid 429, 431.

23 As enshrined in article 31 UN CRC.

24 UN Committee on the Rights of the Child, (fn 15).

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intelligence to process information critically. Accordingly, it is impossible for them to make
balanced commercial decisions, which may negatively impact their right to development.25 The
actual impact of social media influencing on the child influencer and the child viewer is not yet
clear, especially through the lens of participation as recreation or play. It is assumed that
commercial child influencing has similar effects on children as traditional marketing; however,
the impact of influencer work on the child influencer’s development is relatively uncharted
territory. Arguably, commercialised forms of play do not fall in line with a child’s right to play
under the CRC.26 The concept of ‘play’ under Article 31 CRC refers to unstructured informal
activities of children that are not controlled by adults. Moreover, it covers activities which are
based on free choice and are not compulsory. It applies to activities which generally take place
outside of formal school and work settings.27 On the contrary, child influencer work –
depending on the age of the child – is often arranged and encouraged by parents. In some
cases, the work has become (an important) source of family income. For example, the videos
uploaded daily to his YouTube Channel featuring Ryan from Ryan Toys Reviews are clearly
staged and professionally edited by his parents (who also often appear in the videos).28 In order
to play their part, children are often required to dress up on a daily basis, follow scripts, and
act in videos recorded by their parents while (knowingly or not) promoting products or services
to their peers. This does not satisfy the definition of ‘play’ as intended by the CRC; on the
contrary, it bears more resemblance to work (e.g. child performers) and could constitute a new
form of child labour.

2.3 Rights protecting children in commercial decision-making and

economic exploitation
A child’s right to development, in conjunction with the right to freedom of thought (Article 16
CRC) and the right to protection against economic exploitation (Article 32 CRC), has an
important protective dimension: it requires that children are protected from certain types of
commercial practices.29 The right for a child viewer’s development requires protection against
forms of commercial communication that they do not recognise as such and cannot critically
process.30 Generally, viewers perceive themselves as sharing similar opinions and preferences
as influencers. This suggests that a positive review of a brand or product from an influencer

25 The right to development in the context of advertising and marketing requires children on the one
hand to be protected against harmful and/or misleading advertisements, and on the other hand to be
empowered and educated to cope with advertisements and make balanced commercial decisions (i.e. be
‘advertising literate’). See Valerie Verdoodt, ‘Children’s Rights and Advertising Literacy in the Digital
Era: Towards an Empowering Regulatory Framework for Commercial Communication’ (KU Leuven,
UGent 2018).
26 UN Committee on the Rights of the Child, ‘General Comment No. 17(2013) on the right of the child to

rest, leisure, play, recreational activities, cultural life and the arts (art. 31)’ (Refworld, 2013), p. 14 <
https://www.refworld.org/docid/51ef9bcc4.html> accessed 8 August 2019.
27 Paulo David, A Commentary on the United Nations Convention on the Rights of the Child, Article 31:

The Right to Leisure, Play and Culture (Brill 2006).

28 Ryan ToysReview <https://www.youtube.com/channel/UChGJGhZ9SOOHvBB0Y4DOO_w> accessed 8

August 2019.
29 Verdoodt (fn 25).

30 Ibid.

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may result in a positive review or purchase from the viewer (i.e. social comparison theory).31
Humans – as social creatures – tend to copy behaviours and beliefs of people they like.32 The
impact of commercial pressure via peer influencing can be even greater when both the
influencer and the viewer are children. For child influencers, familiarizing children with
influencer work and the promotion of goods and services at a young age may lead them to
normalize commercialization and/or exploitation. High-earning child influencers that
promote a lifestyle based on consumption (e.g. receiving new toys on a daily basis) could lead
to a child becoming artificially materialistic or attach unnatural value to money, and affect
their commercial-decision making and freedom of thought. 33
A child’s right to protection against economic exploitation could provide certain protections
from influencer work in two different ways. First, Article 32 CRC is generally associated with
the protection of children against child labour, including harmful or hazardous work.34
Influencer activities are usually not ‘hazardous’ because of a lack of imminent or immediate
danger, except if they have to perform dangerous stunts or if they are used for illicit activities
like the production of child sexual abuse material. The concept of work is not limited to
employment relationships, but entails all forms of work by children, including in the family
environment. Second, Article 32 CRC requires that influencer work is not harmful to a child’s
health, or physical, mental, spiritual, moral or social development, and it may not interfere
with the child’s education. This means these activities may not be overly time-consuming or
physically or emotionally demanding, as they should not prevent children from growing up as
productive members of society.35 However, if you want to remain a popular influencer, you will
have to continuously publish vlogs, pictures and other content on social media platforms.
Producing high-quality and entertaining content on a weekly or even daily basis takes a lot of
time. The pressure to continue to perform will only increase.36
In the digital era, ‘economic exploitation’ can be interpreted far more broadly than a child
undertaking labour.37 The term has two distinct elements: (1) economic and (2) exploitation.
The first term implies that there is some sort of material interest, i.e. a gain or profit through

31 Jung Eun Lee and Brandi Watkins, ‘YouTube Vloggers’ Influence on Consumer Luxury Brand
Perceptions and Intentions’ (2016) 69 Journal of Business Research 5753.
32 Alexander R Bentley, Mark Earls and Michael O’brien J, I’ll Have What She’s Having - Mapping

Social Behavior (MIT Press, 2011).

33 Suzanna J Opree, Moniek Buijzen, Eva A. van Reijmersdal and Patti M. Valkenburg, ‘Children’s

Advertising Exposure, Advertised Product Desire, and Materialism: A Longitudinal Study’ (2014) 41
Communication Research 717.
34 Lee Swepston, A Commentary on the United Nations Convention on the Rights of the Child, Article

32: Protection from Economic Exploitation (Brill, 2012).

35 Ibid.

36 The example of child influencer Lil’ Tay comes to mind, who was ‘nudged’ by her family to perform

curse-laden monologues (often involving racial slurs), participate in controversial collaborations (with
a convicted rapper), and fights with other influencers. When videos surfaced showing that Tay’s older
brother was feeding her lines, her fans were outraged and her popularity took a big hit. See for instance
Jacob Shamsian, ‘9-year-old viral sensation Lil Tay has disappeared from Instagram after a video of her
brother feeding her lines was leaked’ (Insider, 4 June 2018) <https://www.thisisinsider.com/lil-tay-
instagram-posts-deleted-viral-video-2018-6> accessed 8 August 2019.
37 Van der Hof (fn 8); Verdoodt (n 25).

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the production, distribution or consumption of goods and services.38 This material interest
may have an impact on the economy of either the State, the community, or the family. There is
an economic element in the influencer/target audience relationship: goods and services are
promoted to children, leading to increased consumption by the targeted child and family. In
turn, the brand increases its profits and the influencer receives sponsoring or free goods.
Secondly, ‘exploitation’ means ‘taking unjust advantage of another for one’s own advantage
or benefit’.39 This includes manipulation, misuse, abuse, victimization, oppression or ill-
treatment. A child may not be able to interpret that information, content, or entertainment is
actually a persuasive commercial message. He/she may also be subjected to manipulation if it
is unclear that certain information, content or entertainment is a persuasive commercial
message.40 Watching peers that are influencers play or entertain may hide a commercial
message. That ‘other child’ is merely playing but is doing so with some really cool toys. As
previously mentioned, the impact of child influencers on other children is still uncharted
territory though.

2.4 Provision rights

The child’s right to development also ensures that children are allowed to develop necessary
life skills to face the challenges they can expect to be confronted with in real life.41 These life
skills include the ability to make balanced decisions, resolve conflicts in a peaceful manner, be
a critical thinker, etc. This right also requires children to be educated and empowered to cope
with digital advertising (i.e. become ad literate) so they can grow up to be critical, informed
consumers who make their own conscious choices in today’s new media environment.

2.5 Children’s rights standards for the regulatory framework

It is up to signatory States to ensure proper implementation of children’s rights and the
regulatory framework achieves a balance between protection, participation and provision. In
this regard, a children’s rights impact assessment (CRIA) can be used as a means to assess
whether and how policies or laws effectively address harms originating from child influencer
work. However, such an assessment also requires research on the potential impact of
influencer work on the development of both child influencers and viewers. Therefore, social
science research is urgently needed on inter alia the pressure on child influencers to perform,
differences between age groups and the actual impact on the behaviour of viewers.

38 UN Committee on the Rights of the Child, ‘UNCRC Discussion Day 1993, Economic Exploitation of
Children, CRC/C/20’ (United Nations Human Rights Office of the High Commissioner, 1993), p. 3
<http://www.ohchr.org/EN/HRBodies/CRC/Documents/Recommandations/exploit.pdf> accessed 8
August 2019.
39 UN Committee on the Rights of the Child (fn 38).
40 An illustration can be found in children’s changing food choices, as research has revealed that children

who played advergames promoting less healthy foods were more likely to select less healthy food options
than those who played advergames promoting healthier food options, which may lead to long term
health concerns such as obesity. Kathryn C Montgomery and Jeff Chester, ‘Interactive Food and
Beverage Marketing: Targeting Adolescents in the Digital Age’ (2009) 45 Journal of Adolescent Health
S18.
41 UN Committee on the Rights of the Child, ‘General Comment No. 1 (2001) Article 29 (1): The Aims of

Education’ (Refworld, 2001) <https://www.refworld.org/docid/4538834d2.html> accessed 8 August

2019.

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3 THE BROADER REGULATORY FRAMEWORK FOR COMMERCIAL
COMMUNICATION
The protection of children against certain forms of advertising has long been regarded as a
general interest objective.42 Both EU and national policy agendas, as well as regulations,
generally focus on lowering commercial pressures on children caused by advertising,
marketing and other commercial practices.43 At EU level, there are several legislative
instruments that contain child protection measures, regulating both the content and the way
in which a commercial message is disseminated.44 While the advertising sector largely self-
regulates, this is generally limited to content, rather than consumption or labour regulation.
As a result, current regulatory frameworks for commercial communication are fragmented in
both legislative and alternative regulatory instruments (i.e. self- and co-regulation), that with
general practice codes containing a large number of obligations for advertisers.
The following section examines to what extent these rules provide specific protections for child
influencers. It looks into the issue of whether a new type of economic exploitation – child
influencer work in itself – could be addressed by for instance labour laws.

3.1 Advertising and marketing rules

3.1.1 EU Legislation
The first piece of the regulatory puzzle consists of the Unfair Commercial Practices Directive
(UCPD), which constitutes an important protection instrument for consumers (including
children) when it comes to advertising and marketing.45 The Directive protects consumers
against unfair commercial practices – which include commercial communications – on three
distinct levels: (1) a general clause; (2) two clauses specifying protections against misleading
and aggressive commercial practices respectively and; (3) a blacklist contained in Annex I that
specifies certain practices which are deemed de facto unfair.46 The Directive also emphasises
the importance of protecting ‘vulnerable consumers’ and identifies children as a concrete

42 Verdoodt (fn 25) 36.

43 See for instance OECD, ‘The Protection of Children Online Recommendation of the OECD Council
Report on Risks Faced by Children Online and Policies to Protect Them’ (OECD, 2012)
<https://www.oecd.org/sti/ieconomy/protecting-children-online.htm> accessed 8 August 2019; UN
Committee on the Rights of the Child (fn 15); European Commission, ‘Communication from the
Commission to the Council, the European Parliament and the European Economic and Social
Committee - EU Consumer Policy Strategy 2007-2013 - Empowering Consumers, Enhancing Their
Welfare, Effectively Protecting Them’ (European Commission, 2007), p. 11 <https://eur-
lex.europa.eu/legal-content/EN/TXT/?uri=celex:52007DC0099> accessed 8 August 2019; European
Parliament, ‘Resolution of 15 December 2010 on the Impact of Advertising on Consumer Behaviour’,
2010/2052(INI).
44 Directive 2005/29/EC (Unfair Commercial Practices Directive) [2005] OJ L 149; Directive 2018/1808

(Audiovisual Media Services Directive) [2018] OJ L 303; Directive 2000/31/EC (E-Commerce

Directive) [2000] OJ L 178.
45 Directive 2005/29/EC.

46 Article 5(5) UCPD. Although the UCPD is constructed in line with the sequence presented in the

previous sentence, in effect it operates in reverse with the general clause acting as a safety net.

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example of this category.47 The Directive requires that the impact of advertising and marketing
specifically targeted to children, should be assessed from the perspective of the average
member of that group.48 For instance, the European Commission’s Guidance on the
implementation of the UCPD highlights that some children might be particularly vulnerable to
advertisements about videogames, whereas teenagers are often targeted by rogue traders that
promote appealing products through exploitation of a teenager’s immaturity and their lack of
attention or reflection (e.g. mobile phone advertisements claiming that by subscribing to the
service, they will make friends more easily).49
Furthermore, point 28 of the UCPD’s blacklist refers to the following practice: ‘including in an
advertisement a direct exhortation to children to buy advertised products or persuade their
parents or other adults to buy advertised products for them’. Statements by influencers like
‘Buy my sweaters now’ or ‘Tell your mom to order it from my website’ are thus prohibited under
the UCPD.
While the Directive provides certain protections for child-viewers against influencer
marketing, it does not protect those children who are commercially exploited through child-
influencer work. In fact, there is a question whether child-influencers (or their parents) would
qualify as traders themselves under the UCPD. This would imply certain responsibilities,
including the disclosure of the commercial nature of videos on their YouTube channels or
photos on their Instagram profiles. A ‘trader’ is anyone who is acting for the purposes related
to his trade, business, craft or profession, and anyone who is acting on behalf of another
trader.50 This means that both the brand or company that wants to promote their goods or
services and the influencer that is hired to make a promotional video could – depending on the
circumstances51 – qualify as traders under the Directive.52 However, the situation may be
different if the influencer is a child. In Belgium, the law permitting underage traders was
abolished in 1990, thereby setting the minimum age to conduct a business to eighteen years.

47 The European Commission has also identified teenagers as a group of vulnerable consumers for the
same reason as children (i.e. their lack of attention or reflection due to their immaturity). European
Commission, ‘Commission Staff Working Document: Guidance on the Implementation/Application of
Directive 2005/29/EC on Unfair Commercial Practices’ (European Commission, 2009)
<http://ec.europa.eu/justice/consumer-marketing/files/ucp_guidance_2009_en.pdf> accessed 16
January 2018.
48 Recital 19 UCPD: ‘Where certain characteristics such as age, physical or mental infirmity or credulity

make consumers particularly susceptible to a commercial practice or to the underlying product and the
economic behaviour only of such consumers is likely to be distorted by the practice in a way that the
trader can reasonably foresee, it is appropriate to ensure that they are adequately protected by assessing
the practice from the perspective of the average member of that group.’
49 European Commission, ‘Commission Staff Working Document - Guidance on the
Implementation/Application of Directive 2005/29/EC on Unfair Commercial Practices, SWD(2016)
163 Final’ (European Commission, 2016) 45 <http://ec.europa.eu/justice/consumer-
marketing/files/ucp_guidance_en.pdf> accessed 9 October 2017.
50 Article 2(b) UCPD.

51 Valerie Verdoodt and Nadia Feci, ‘Digital Influencers and Vlogging Advertising: Calling for Awareness,

Guidance and Enforcement’ (2018) 1 Auteurs en Media.

52 This was confirmed by a representative of the European Commission, during the discussion table on

top-down regulation versus self-regulation at the Book Workshop on the Regulation of Social Media
Influencers in Maastricht on the 11th of January 2019.

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Therefore, Belgian minors cannot be traders53 and authorization or emancipation for the
purpose of setting up a business is not lawfully possible.54 If minors were to take action for the
purposes of trade, these would be considered violations of civil law and their parents will be
held responsible.55 In the Netherlands, on the other hand, even though they have enjoyed
reduced legal capacity, minors can run a business if they have their parents’ or guardian’s
permission, or by court order.56 This implies that minors can be ‘traders’ under the UCPD
although parents may also be liable.
The EU has another legislative instrument for protecting children against certain forms of
advertising. The revised Audiovisual Media Services Directive (AVMSD) is the cornerstone of
EU media regulation and provides rules for audio-visual commercial communications, such as
television advertising, advertising in on-demand services.57 The last revision extended the
scope to include audio-visual commercial communications on video-sharing platforms (VSPs),
like promotional videos by influencers. This legislative instrument protects all viewers against
hidden commercial messages (i.e. via the identification principle which requires that audio-
visual commercial communication needs to be identifiable), but it also contains specific
protections for children against direct exhortations to buy, harmful messages, the promotion
of harmful products and there are specific rules for sponsoring and product placement
appearing in children’s programmes. Recital 3 of the Directive explicitly mentions that
channels on VSPs (e.g. YouTube channels) could constitute media services, even if the VSP on
which they exist is characterised by the absence of editorial responsibility. The Directive places
the responsibility for complying with the legal requirements (e.g. identification of the
commercial nature of videos) on the shoulders of the provider who has the editorial
responsibility of the channel.58 As such, the EU legislator recognises the limited control
exercised by VSP providers over videos uploaded on their platform. VSP providers can still play
a role in the protection of children against influencer-marketing, as they are required to take
appropriate measures to ensure that influencers comply with the rules of the Directive when
they upload videos messages.59 Nevertheless, similarly to the UCPD, the protection for children
in the current AVMSD is focused on child-viewers and the position of child-influencers is not
addressed.

53 This also means that minors cannot lawfully fulfil the legal requirements that traders have to comply
with - such as registering at the trade register - nor can they be declared bankrupt or be summoned
before the Court of Commerce in relation to these actions.
54 The Law of 19 January 1990 does contain one exception, a minor can only acquire the status of a trader

in the hypothesis provided for in Article 8 of the Belgian Code of Commerce: if it is a continuation of the
trade of the parent (s) of the minor by the guardian. See Ballon, 2000 OHRA - Afl. 15 (January 2000).
55 Article 2 and 3 of the Belgian Commercial Code, read together with Article 1384 of the Belgian Civil

Code.
56 See Dutch Chamber of Commerce, ‘Bedrijf starten als minderjarige’ (KvK, 2019)

<https://ondernemersplein.kvk.nl/bedrijf-starten-als-minderjarige/> accessed 8 August 2019.

57 Directive (EU) 2018/1808.

58 This will have to be assessed on a case-by-case basis, taking into account the age and maturity of the

child and the role of their parents in the organization of such videos. Thus, depending on their age and
development, child-influencers or their parents will be responsible for ensuring that their sponsored
videos are compliant with the rules.
59 Verdoodt and Feci (fn 51).

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In sum, these two important legislative instruments at EU level regulating commercial
communications contain several protections for child-viewers – usually focused on identifying
the commercial nature of videos or prohibiting direct exhortations to children – but do not
consider the position of the child-influencer. Considering that the advertising sector has
traditionally been very active in the development of self-regulation, their commitments
regarding influencer marketing are analysed in the following section.
3.1.2 Self-regulation
Advertising regulation in the United Kingdom has narrowed from protection in the public
interest to regulation of the effect of advertiser behaviour on competition. The Consumer
Protection from Unfair Trading Regulations 2008 (CPRs) specifically prohibit ‘using editorial
content in the media to promote a product where a trader has paid for the promotion without
making it clear in the content or by images or sounds clearly identifiable by the consumer.’ In
practice, advertising is self-regulating. In 1961, the industry formed the Committee of
Advertising Practice (CAP) and the British Code of Advertising Practice (CAP Code). An
independent body, the Advertising Standards Authority, was established to administer the
Code and to supervise the work of the self-regulatory system. The advertising industry initiated
a system of self-regulation in non-broadcast media in 1962, followed by co-regulation with
Ofcom to cover broadcast media in 2004, creating a ‘one stop shop’ for advertising regulation.
The ASA is the ‘established means’ for keeping advertisers in line with both these pieces of
legislation. This means that the courts do not usually enforce the law in the first instance;
instead, problems under the Advertising Codes are tackled by the ASA. This approach works
well in the overwhelming majority of cases. The ASA is able to act quickly and this avoids
clogging up the court system. Referral is rarely necessary, as most advertisers prefer to work
within the self-regulatory system.60
From 1 March 2011, an extension to the ASA’s remit included marketing communications on
traders’ own websites or in other non-paid-for space online under their control, directly
connected with the supply of goods or services. If a child influencer posts a positive
promotional review about a product (pretending to be a consumer) this will amount to a
marketing communication. However, in order for a child influencer to fall under the CAP Code,
two criteria are required: editorial control and payment. Editorial control means that the brand
must have editorial control over the marketing communication. It is ‘not enough for a brand
owner/marketing practitioner to pay someone to promote a product’ on Instagram. The brand
must supply some form of ‘editorial content’ for the marketing communication to fall within
the remit of the CAP Code. Some form of payment is required, although this is not limited to
cash. In the event there has been ‘payment’ but not control, then the advertisement falls under
consumer protection legislation and is enforced by the Competition and Markets Authority.
The ASA received a complaint in 2014 from a BBC journalist regarding vlogging advertising of
Mondelez’s Oreo cookie. The journalist claimed that Oreo advertisements were not obviously
identifiable as marketing communications. The case involved so-called ‘Lick Race videos’ on
different YouTube Channels, owned by popular vloggers, which portrayed the vloggers eating

60 Advertising Standards Authority, ‘Self-Regulation and Co-regulation’ (ASA, 2019)

<https://www.asa.org.uk/about-asa-and-cap/about-regulation/self-regulation-and-co-
regulation.html> accessed 8 August 2019.

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an Oreo in a particular way.61 The videos were part of a marketing project by Mondelez UK Ltd,
in cooperation with the vloggers concerned. The ASA ruled that the references used by the
vloggers at the end of the videos – ‘Thanks to Oreo for making this video possible’ – did not
sufficiently make clear to the audience that the vloggers were collaborating with Mondelez.
More specifically, the ASA highlighted that the identification requirement is applicable to the
general audience of the advertisement. Since the video advertisements were uploaded on a
video-sharing platform that is usually editorial-based, viewers might perceive the video
advertisements as a form of sponsorship, where the vlogger retains the editorial responsibility
over its content despite receiving financial support.62 The video advertisements were very
similar to the editorial content on the respective channels, and as such, the ASA ruled that the
commercial intent would not have been immediately clear from the style alone. In addition,
the references in some of the videos were only made at the end of the video, or merely in the
video description. According to the ASA, this entails that viewers have already interacted with
the video, undermining the protective aim of the identification requirement.
Following the ruling, the Committee of Advertising Practice63 issued guidelines for vlogging
advertising, which clarify the responsibilities for the different parties involved. The principle
remains the same: advertising by vloggers needs to be recognizable as such to the audience. If
influencers receive any benefits from brands, they will have to disclose this commercial
relationship. According to the CAP Guidelines, there are two ways in which a vlogger may
clarify the commercial intent of a vlog: (1) by making it clear within the overall context of the
communication or (2) by labelling a vlog as an advertisement.64 The CAP provides specific
guidelines for several forms of vlogging advertising and clarifies for each of these who is
responsible for complying with the identification requirement. For instance, advertorials (i.e.
the video is in the usual style of the vlogger but the content is controlled by the brand and the
vlogger has been reimbursed in some way) need to be labelled upfront so that viewers are aware
of the nature of the video before engaging with it. In this context, both the vlogger (i.e.
publisher) and the brand (i.e. marketer) are considered responsible for this labelling
requirement.65 For each type of vlogging advertising, the CAP provides guidance on how to
fulfil the identification requirement. These guidelines are meant to provide ‘a non-exhaustive
overview of vlogging scenarios with practical advice on how and when the rules kick in’.66
Although the scenarios and means of labelling are non-exhaustive, digital influencers that do
not follow the CAP guidelines are at risk of being subject of a ruling by the ASA.
TYPE OF VLOGGING ADVERTISING LABEL WHO IS RESPONSIBLE
FOR THE LABELLING?

61 Peter Matzneller, ‘GB-United Kingdom:ASA Upholds Complaint about Oreo Biscuit Ad in YouTube
Videos’ (IRIS Merlin, 2015) <http://merlin.obs.coe.int/iris/2015/2/article20.en.html> accessed 8
August 2019.
62 Matzneller (fn 61).

63 For more information on the CAP see https://www.asa.org.uk/about-asa-and-cap.html.

64 Advertising Standards Authority, ‘Video Blogs: Scenarios’ (ASA, 19 August 2015)

<http://www.asa.org.uk/advice-online/video-blogs-scenarios.html> accessed 8 August 2019.
65 Rule 2.4 CAP Guidance.

66 Advertising Standards Authority, ‘New Vlogging Advertising Guidance’ (ASA, 19 August 2015)

<http://www.asa.org.uk/news/new-vlogging-advertising-guidance.html> accessed 8 August 2019.

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 Online marketing by a brand
Advertorial vlogs
(the whole vlog is paid for and
controlled by a brand)
Commercial breaks within
vlogs
(a dedicated section of the
editorial content is paid for
and controlled by a brand)
Product placement
A vlogger’s video about their
own product
Editorial video referring to a
vlogger’s own products
Sponsorships
(A brand sponsors a vlogger to
create a video but has no
control of the content)
Free items
(A brand sends a vlogger items
for free without any control of
the content (or any conditions
attached))
As can be seen in Table 1, the obligation falls on the influencer to ensure compliance with the
regulations. As it stands, there are no exceptions for child influencers. Considering that parents
legally represent their children if they have parental authority, it will be the parents that need
to make sure that their children are legally compliant (at least up until a certain age).
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No label needed: commercial intent is likely to be clear /
from the context
Use: ‘advertisement feature’, ‘ad’, ‘ad feature’, The vlogger as
‘advertorial’ or similar ‘publisher’ and the
brand as ‘marketer’
Where: in the title or thumbnail
Do not use: ‘sponsored’, ‘Supported by’, ‘Funded by’
and ‘Thanks to X for making this possible’
Make clear when the ad starts: Onscreen text stating Vlogger
‘ad’, ‘ad feature’, holding up a sign, incorporating the
brand’s logo, or by the vlogger simply explaining that
they’ve been paid to talk about the product.
In addition (so not necessary) vloggers may add in the
description box: ‘this video includes advertising for
specific products which is indicated by […]’
No label needed for the entire vlog; onscreen text Vlogger
stating ‘ad’, ‘product placement’, holding up a sign, or
the vlogger explaining that they’ve been paid to talk
about the product.
The video title should make clear that the video is Vlogger
promoting the vlogger’s products: ‘I’m excited about
my promotional/book/album tour’, ‘new product
news’ or ‘Let me show you how to use my new make-
up line’ would be sufficient.
No label needed if the marketing communication is Vlogger
clear within the context: e.g. a gaming vlogger may say
‘I’m currently using the new headphones I’ve just
released; you can purchase them through the link
below’.
In addition (so not necessary) vloggers may add in the
description box: ‘this video includes advertising for my
new […]’, especially where they haven’t advertised to
their followers before.
No label needed under the CAP Guidance Vlogger
However: a nod to the sponsorship is required under
consumer protection law.
No label needed under the CAP Guidance Vlogger
However: vloggers are required under consumer
protection law to tell consumers if an item was given
on the condition that it is talked about.
Table 1 – CAP Guidance
Child Influencer Law 14
In Belgium, a complaint67 against a YouTuber led to the development of guidelines68 for
influencer marketing before the Jury for Ethical Practices in Advertising.69 The guidelines are
built on the principles of identification, fairness and transparency, which have been formed
into four concrete guidelines. First, online influencers have to disclose any commercial
relationship with a brand in a visual or audible way.70 Furthermore, the words or hashtags
disclosing the commercial intent of the vlog will need to be adjusted in function of the language
of the message or target audience, as social media does not have (linguistic) boundaries
(publicité, advertising, promoted, ad, paid, ...). Third, the disclosing words should be
mentioned in such a way and place that the recipient immediately understands the correct
nature of the message. Finally, the words should not be hidden: the average consumer will have
to be able to take notice of the disclosure in normal circumstances. The scope of application of
the guidelines is limited as they only applies if two conditions are fulfilled: (1) a remuneration
was received, (2) the advertising company exercises control over the commercial
communication. The latter envisages the situation where the advertiser and online influencers
have agreed upon guidelines concerning the commercial message. This second condition
implies that cases where a vlogger would receive a product for free under the condition to make
a video about that product will not be covered by the guidelines unless the advertiser has
explicitly ordered how the promotion of the product will have to take place.
Moreover, the self-regulation code of the International Chamber of Commerce contains a
number of important general principles, as well as specific protection for children and
adolescents regarding harmful business practices.71 The Code is based on the principles of
honesty, legal compliance, truthfulness and decency of advertisements. Recently, however,
several national self-regulatory authorities, as well as groups of digital influencers themselves,
have issued or pledged to follow guidelines on how to disclose commercial relationships in

67 In the contested video, the vlogger addresses his young audience while elaborately praising a sweater
that is for sale on his website. A number of questionable statements are used in and around the video.
For example, the title of the vlog reads: 'GRATIS ECHTE BROER TRUIEN' (freely translated: ‘free
sweaters for real fans’). While watching the video, however, it becomes clear that the sweaters in fact
cost €30. Besides this, the vlogger calls upon his (mostly underage) public to steal their parents' credit
card in case they are not allowed to buy his merchandising. In addition, the vlogger also regularly
emphasises that only when viewers buy one of his sweaters, they are considered to be 'real fans'. JEP,
‘Acid Apparel’, (JEP, 12 September 2018) <https://www.jep.be/nl/nieuws/acid-apparel-12-09-2018-
beslissing-tot-wijzigingstopzetting> accessed 8 August 2019.
68 JEP, ‘Aanbevelingen van de Raad voor de Reclame inzake online influencers’ (JEP, October 2018),

<https://www.jep.be/sites/default/files/rule_reccommendation/aanbevelingen_van_de_raad_voor_
de_reclame_online_influencers_nl.pdf> accessed 8 August 2019. For a complete overview of events see
Verdoodt and Feci (n 51).
69 The Jury for Ethical Practices in Advertising, for more information see <https://www.jep.be/nl>

accessed 8 August 2019.

70 This can be done by stating one of the following words: ‘reclame, advertentie, sponsoring, promotie,

gesponsord door, in samenwerking met, ...’ or hashtags: ‘#spon, #adv, #prom, #reclame, #recl,
#sample, #...’.
71 ICC, ‘Interpretation of the Consolidated ICC Code’ (ICC, 2014) <http://www.codescentre.com/icc-

code/general-provisions.aspx#gen1> accessed 8 August 2019.

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online videos.72 In the Netherlands, several YouTubers developed the Social Code YouTube in
2017, in collaboration with the Dutch Media Authority and the national self-regulatory
organisation (SRO) for advertising.73 The Social Code contains labelling requirements74 for
influencer marketing on YouTube.75 Influencers that pledge to comply with the Social Code are
only allowed to collaborate with advertisers that accept the Code’s labelling requirements.
3.1.3 Are advertising and marketing rules tailored to the child-influencer
phenomenon?
Do the existing rules also apply to child-influencers? Are there special rules or requirements
adapted to this specific context? The instruments are drafted against the idea that advertisers
are adults or businesses and provide protections for children as viewers, and not for the child
influencer. Without a coordinated approach at the EU level and the resulting distributed
nature of labelling requirements raises practical questions regarding enforcement.76 The
labelling guidelines and current industry practices were not developed with a children’s
audience in mind; this is problematic as digital influencers are highly popular among children.

3.2 Protections for children in labour law

3.2.1 EU and international
The EU Child Labour Directive aims to prohibit work by children and strictly regulate work by
young people.77 A ‘child’ is defined as any person under 15 or subject to compulsory schooling
under national law and ‘young people’ as any person under 18 (Article 3). The Directive lays
down a minimum age for the employment of children and rules on inter alia protection from
safety, health and development risks, working time and rest. An exception to the prohibition
on child labour exists in the case of ‘light work’. This includes advertising activities and
performances. Such light work may be allowed under two conditions. First, it must be subject
to prior authorization by the national competent authority in individual cases, or a derogation
in the law in the case of children of at least thirteen. And second, the employment is not likely
to be harmful to inter alia the safety, health or development of children and their attendance

72 For instance in the UK, ASA (fn 64); and in the Netherlands, Social Code: YouTube,
<https://www.cvdm.nl/wpcontent/uploads/2017/11/Social_Code_YouTube.pdf> accessed 8 August
2019.
73 Stichting Reclamecode, for more information see <https://www.reclamecode.nl> accessed 8 August

2019.
74 Depending on the type of advertising, influencers have to use different labels. For instance, if

advertising is paid by a brand, the label can either be an image before the video starts, screen-filling for
minimum of 3 seconds; or the influencer has to mention that the video includes an advertisement. In
addition, the influencer has to add the following statement to the description box: ‘This video includes
a paid collaboration with … ‘. If the influencer receives free goods or services, then this has to be clearly
stated in the description box. See Social Code: YouTube (fn 72).
75 According to Meindersma, the rules are platform-dependent and do not apply to other video-sharing

platforms. See Charlotte Meindersma, ‘Nieuwe Regels Voor YouTubers, de Social Code’
(Marketingfacts, 21 November 2017) <https://www.marketingfacts.nl/berichten/nieuwe-regels-voor-
youtubers-de-social-code> accessed 21 August 2019.
76 Verdoodt (fn 25).

77 Council Directive 94/33/EC of 22 June 1994 on the protection of young people at work (Young

Workers Directive) [1994] OJ L 216.

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at school.78 However, the Directive is confined to children having an employment contract or
an employment relationship under national law79 which seriously limits its scope of
application.80
Advertising activities have not been defined in the Directive. An evaluation of the Directive
undertaken in 2015 does not provide any further information nor discusses any new
marketing-related developments in the digital world. There is no guidance on adverse
consequences of advertising activities and the development of children.81 It is safe to say that
children working in advertising and social media influencing is a neglected area of child labour
at the EU level.
3.2.2 National level
National laws provide rules on child labour and exceptions on what work children are allowed
to engage in. We will focus specifically on the Netherlands, Belgium and the UK to show how
such rules could apply to child-influencer work.
The Netherlands
The 1995 Employment Hours Act (Arbeidstijdenwet) implements the 1994 EU Directive (see
paragraph 3.2.1), which holds a prohibition of child labour. ‘Child’ is defined as a person under
16 and ‘labour’ includes any activities of a child in a commercial setting; thus, excluding any
activities of a purely private nature.82 Both the employer and the parent or caregiver must
ensure that the prohibition of child labour is complied with and both can be held criminally
liable.83 Excluded from the prohibition are activities that are not related to the compliance with
a contractual agreement. Contractual agreement is interpreted broadly and encompasses
contractual agreements with parents.84
The Act provides exceptions to the prohibition of child labour inter alia with respect to light
work such as fashion performances, audio-visual recordings and other light, non-industrial,
work.85 Children from thirteen can engage in light work after school hours; in the case of
children under thirteen, the employment inspectorate can grant dispensation from the child
labour prohibition for cultural work, such as fashion performances and audio-visual

78 Article 5 YWD.
79 Article 2 YWD.
80 See also Ursula Kilkelly, ‘Economic Exploitation of Children: A European Perspective’ (2003) 22 St.

Louis U. Pub. L. Rev. 321, 329.

81 European Commission, ‘Evaluation of the Practical Implementation of the EU Occupational Safety

and Health (OSH) Directives in EU Member States’ (European Commission, September 2015)
<http://ec.europa.eu/social/BlobServlet?docId=16953&langId=en> accessed 8 August 2019. See also
European Commission, ‘Commission Staff Working Document on the application of Council Directive
94/33/EC of 22 June 1994 on the protection of young people at work’ (European Commission, 27
October 2010) < https://bit.ly/2YA0zrt > accessed 8 August 2019.
82 Harry van Drongelen and Peter Vos, De Arbeidstijdenwet Compleet – Toelichting, wettekst, register,

literatuurlijst (NIA TNO, 1997), 23.

83 Ibid., 34.

84 Van Drongelen and Vos (fn 82).

85 Articles 3:2 and 3:3, Employment Hours Act 1995.

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recordings at the request of employers.86 Light work has not been defined any further in the
Act, nor in secondary legislation.87 However, it does include, for instance, children performing
in television commercials. ‘Light’ applies to both the physical and mental state of the child;
therefore, certain productivity pressures are not allowed.88 At all times, children must be
protected from unsafe situations and adverse effects on their physical or mental
development.89
The Act is focused on employment relations and thus most, if not all, child-influencer work is
not covered. Such work takes place under the authority of parent, rather than an employer.
Belgium
Belgium has a fairly complete legislative toolbox concerning child labour (up to 15 years) and
youth work (from 15 to 18 or 21 years). The general principle is that it is prohibited to have
labour done by children. However, there are two exceptions to this principle: (1) work that falls
within the framework of the child’s education or training and (2) highly exceptional work for
which an individual derogation can be obtained. The latter exception covers, for instance,
children participating as actors or models in videos or images, even if they serve an advertising
purpose. If child influencer work would be included in this exception, then children would
benefit from a number of protections. First, this would mean that the organizer of such work
would have to apply for a specific deviation90 from the child labour prohibition, one month in
advance.91 Furthermore, the organizer has to ensure that the activity does not have an adverse
effect on the child and must obtain the consent of the father, mother or legal guardian prior to
the recording or photo shoot. Third, if the child is still subject to compulsory education and the
work requires the child to be absent from school, then a written advice of the school
management should be obtained. There are also a number of labour conditions that have to be
safeguarded, depending on the age of the child. For instance, there are different limits to the
number of hours children are allowed to work92 and mandatory resting periods that need to be
respected. The organiser of such work can be the business engaging the child-influencer or the
parents of the child, depending on the situation. Important to note is that any monetary
remuneration for the child’s labour must be wired to an individualised savings account in the

86 The Child Labour Regulation (Nadere regeling kinderarbeid) provides more specific rules on the
exceptions the child labour prohibition for different ages.
87 See Article 1:1, Child Labour Regulation which merely defines what is not light work.
88 Van Drongelen and Vos (fn 82), 35.

89 Article 3:5, 1995 Employment Hours Act.

90 The authorization or refusal to derogate is decided by the Advisor-General of the Belgian Social Laws

Inspection or by his delegated official. They have one month starting from the application to
communicate their decision to the applicant.
91 Children aged 6 years or younger are allowed to work a maximum of 4 hours per day, between 8am

and 7pm; children aged 7 to 11 are allowed to work a maximum of 6 hours per day, between 8am and
10pm; children aged 12 to 15 are allowed to work a maximum of 8 hours per day, between 8am and
11pm.
92 Children aged 6 years or younger are allowed to work a maximum of 4 hours per day, between 8am

and 7pm; children aged 7 to 11 are allowed to work a maximum of 6 hours per day, between 8am and
10pm; children aged 12 to 15 are allowed to work a maximum of 8 hours per day, between 8am and
11pm.

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child’s name, which the child will be able to access upon reaching the age of majority. Any
breach of these rules will result in criminal and administrative sanctions for the organizer.93
However, the actual application of these rules to a child influencer work-scenario is not
straightforward. Child influencer work differs from normal acting work in the sense that it is
often organised in their home environment by their parents. Therefore, it can be questioned
how the rules would be enforced and how children – especially very young children - can
exercise their protection rights under such circumstances.
The United Kingdom
The UK’s framework for child labour has unique provisions that could apply to influencers. Like
Belgium and The Netherlands, there is a general prohibition on child labour up until the age of 13
for part-time work.94 For full-time work, there is a prohibition until the minimum school leaving
age (up to 40 hours a week). However, the prohibition on child labour contains an important
exception: children under the age of 16 can work after obtaining a performance licence for areas
like television, theatre, and modelling. A performance licence is required if the child is under the
minimum school leaving age and taking part in films, plays, concerts that the audience pays to see
or ‘any sporting events or modelling assignments where the child is paid’.95 When a child
undertakes to perform in licensed premises, there are chaperone supervision requirements.
While influencer work rarely takes place outside of the home, there is an existing framework for
ensuring risk assessments for child work are undertaken by the relevant local authority, with the
regime emphasising both supervision and the safety of the child. The regime is flexible and
jurisdiction dependent. Northern Ireland, for example, waives the licence requirement when a
child is interviewed or filmed while taking part in some normal activity (i.e. playing) but
categorizes activities that are directed in any way as performances.96 This suggests that brands
that exercise editorial control over a child influencer’s on-screen activity could be subjected to
performance licensing requirements.

4 CONCLUSION
The rights framework for child influencers requires balance between participation, protection
and provision in a variety of specific contexts. It is up to States to ensure the proper balance by
developing appropriate regulatory frameworks. On the one hand, civil law frameworks have
long recognised the need for flexibility in contracting with children. The absolute prohibition
of children entering into contracts has largely fallen out of favour, giving way to more dynamic
approaches that recognise that children routinely enter into contracts on a daily basis. The law
of contract permits participation but remains posed to activate protection mechanisms when
the transaction will harm the child or is not the type of transaction that a child would not

93 Belgian Labour Law of 16 March 1971.

94 Section 37, Children and Young Persons Act 1963; See also The Children (Performances and
Activities) (England) Regulations 2014.
95 UK government, ‘Child employment’ (Gov.uk, 2019) <https://www.gov.uk/child-
employment/performance-licences-for-children> accessed 8 August 2019.
96 UK government, ‘Child performance licence (Northern Ireland)’ (Gov.uk, 2019)
<https://www.gov.uk/child-performance-licence-northern-ireland> accessed 8 August 2019.

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normally enter into. On the other hand, the rules regulating advertising were not drafted with
child influencers in mind; most advertising rules regulate content rather than creators.
In Europe, platforms like Instagram and Facebook are not liable for content found on their
services unless they have active knowledge of it.97 Under the e-Commerce Directive’s ‘notice-
and-takedown’ model, however, they must remove any illegal content after they become aware
of it. Under this arrangement, platforms can intermediate large volumes of content from a
variety of different influencers without any obligation to scrutinize the for harmful content.
However, it would be impossible for platforms to be burdened with verifying the
appropriateness of the working conditions of content creators. Although online advertising
content is subject to civil and criminal law, there is inadequate, systematic regulation of the
work undertaken by children analogous to that which applies to adults in the ‘offline’ world.
Child labour protection is the most obvious gap in the regulatory framework for child
influencers.
Although not all of the identified harms in the preceding sections cross the threshold of
illegality, advertisers should still ensure safeguarding minors against the likelihood of
‘foreseeable harm’ arising. Advertisers, marketers, and the agents representing both are
instrumental in forming relationships. In the offline world, brands owe a duty of care to their
employees and workers; accordingly, brands should take reasonable measures to prevent harm
to their influencers. This is necessary to redress the inherent inequality of arms between a child
influencer and a brand or an advertiser. This will require a brand to ensure ongoing monitoring
and supervision of their influencers that is proportionate, measurable and risk-based. A duty
of care should be expressed in terms of a desired outcome (i.e. the prevention of harm to a
brand’s influencer) rather than necessarily regulating the process that gets there. This
generalization allows for variation in the approaches to influencer work and would be largely
future-proof. This enshrines the precautionary principle into regulatory frameworks for
working with all types of child influencers and influencer work, yet places the regulatory
burden on brands to ensure a risk-based approach to protecting child influencers. The
precautionary principle is ‘applied in situations where there are reasonable grounds for
concern that an activity is causing harm, but the scale and risk of these issues is unproven. The
onus is then on organisations to prove that their practices are safe to a reasonable level.’98
In this regard, advertisers should conduct children’s rights impact assessments when they
engage child influencers or make arrangements with parents. CRIAs should not only consider
children’s rights protecting them against economic exploitation, but also their participation
rights, including their rights to play and to freedom of thought.
In self-regulatory environments, the regulator should, if not already available, adopt powers to
enforce ‘stop notices’ that require brands and child influencers to halt their activity until it has
been proven to be safe. This could also be used to protect children from pushy parents. Specific
to child influencer regulation, advertising regulators should have the powers to suspend or to
alter practices that preliminary evidence from respectable advocacy groups suggests cause

97Directive 2000/31/EC.
98House of Lords, ‘Doteveryone – Written Evidence (IRN0028)’ (Parliament.uk, 10 May 2018)
<http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/communicat
ions-committee/the-internet-to-regulate-or-not-to-regulate/written/82641.html#_ftn3>, accessed 8
August 2019.

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 harm until an independent auditor has assessed their impact and stakeholders (i.e. brands,
parents, and child influencers) have been consulted.
Beyond self-regulatory frameworks, national labour laws have traditionally provided
additional protections for child performers against economic exploitation (e.g. working
conditions, resting periods). However, child-influencer work will mostly fall outside the scope
of these protections, due to the specific nature of the work (i.e. the lack of a real employment
relationship and the work taking place under the authority of the child’s parents). Moreover,
there are still cases imaginable where the economic exploitation of children through child-
influencer work is conducted in accordance with the legal requirements, but which still raise
questions from an ethical and societal perspective. It is then a question whether – regardless
of the legality of such practices – we should accept them as a society, given the potential long-
term impact on child development. In this regard, long-term research on the impact of
commercialisation on children’s development is needed and could further guide the
discussions on safeguards and protections in the regulatory framework.
As for monitoring and supervision, as it stands, for little cost, brands can get a significant
return on their investment and little risk from contracting with child influencers. This
phenomenon, unique to the digital era, mixes play with work, business with pleasure, and
participation with the need for protection through appropriate legal provisions. A child vying
for the attention of a brand may well be performing and playing, while also working. Whether
influencing amounts to economic exploitation of children is an underexplored area of social
science research and a potential regulatory gap in the child protection framework. As
influencing is largely done from behind a computer screen in the home, monitoring and
supervision of child influencers are required by both parents and brands: the former as the
party responsible for the child, and the latter to help ensure the child’s efforts are reasonable
by not going beyond traditional standards for permissible child work.

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