More safeguards needed to protect kid influencers
PARENTS can only do so much when it comes to protecting children who become social media influencers.
Content Forum Malaysia chairman Rafiq Razali says that according to the Content Code, all effort must be made to ensure that any content provided will not result in causing, encouraging, or promoting physical and emotional injury or abuse, or expose young children to moral danger.
“The Content Code defines the protection of children, including content that pays due attention to the welfare of children at all times,” he says.
However, even with parents’ carefully monitoring content, the Content Code only acts as a guideline and may not be enough to protect these “kidfluencers” from the darker side of social media.
This is where the law needs to step in.
Lawyer Joshua Wu says there is a fair amount of general legal protections that would apply to kidfluencers in Malaysia.
These include the Child Act 2001, which has a provision to protect children from being physically or emotionally injured or sexually abused.
Kidfluencers who become victims of stalking by their fans or viewers can also lodge a report with the police under Section 507A of the Penal Code which criminalises stalking.
Wu says there is also Section 17 of the Sexual Offences Against Children Act 2017 if, for example, kidfluencers are sexually assaulted by their fans or viewers. And if their audience defames them, Wu says the children’s parents or legal guardians can, arguably, file a lawsuit on behalf of the child.
However, the potential problems for children who become social media influencers are not just limited to those originating from their fans or viewers.
Child influencers are considered to be working when they post monetised content on social media.
While there are laws in place to protect children in careers like acting, it is not so clear-cut when it comes to the nascent industry of kidfluencers.
Wu says there is the Children and Young Persons (Employment) Act
1966 (CYPEA) in Peninsular Malaysia which regulates the employment of children with regards to things like the number of days of work, the hours of work, and the type of employment allowed.
“However, if a child influencer is not employed via a contract of service – for example, they are doing it on a freelance basis or is self-employed – then the provisions of the CYPEA would not be applicable,” he says.
When it comes to who hanearned dles the income by the kidfluencer, Wu says the parents or legal guardians would have the right to control and manage the child’s property, including income, until the child reaches the age of 21.
But these are all general laws which were not enacted with children monetising their social media content in mind, says Wu.
“With the proliferation of social media it is very easy for a child to become a child influencer. It would be prudent to develents op specific laws to ensure that the rights of child influencers are protected.”
The United States has already started on this endeavour. Last year, the state of Illinois passed an amendment to its Child Labour Law to protect children featured in 30% of their parents’ content over a 30-day period, requiring the parto share their earnings with the children.
At least nine other states in the United States are now pushing for similar legislation, with even more protection for child influencers by allowing children, upon turning 18, to request social media platforms to remove content in which they were featured as minors.
Content Forum chief executive officer Mediha Mahmood says Malaysia should be looking at these best practices from around the world.
“Some jurisdictions are a little more advanced on certain things, especially like this. We should be working not just with the government but with civil society organisations and child rights groups to figure out what we can do about this.”
Wu says Malaysia can consider similar laws as the ones being pushed in the United States, as such laws would be consistent with a child influencer’s right to privacy which is a right recognised by Malaysian courts.
A law could also be introin duced Malaysia to require a certain percentage of the child influencer’s income to be placed in a trust that they can access once they reach the age of majority.
“This would reduce the likeliabuse hood of of the child influincome encer’s by their parents or guardians.”
To protect the employment rights of child influencers, Wu says we could also look to amend the CYPEA to expand its scope beyond the employment of children and young persons via a contract of service. “If the scope of the Act is expanded to cover all forms of employment, including self-employment and/or via a contract for service, the protections in the CYPEA would apply to child influenc“how ers.”