What might have begun as cutesy snaps of a baby in nappies has grown to an income stream as influencer parents promote their children through social media accounts in startup business ventures whose ownership is mired in a legal quagmire.
This legal dilemma poses a question: who legally owns those social media accounts, the parents or the children?
Brisbane intellectual property and cyber technology lawyer Nicole Murdoch says the answer to that question is actually quite complex.
“If the parent took the photos they most likely own the copyright to the images, but in terms of the child, perhaps later demanding the handover, it could depend on several factors,” she says.
If a child was unhappy that their parents had uploaded photos from pictures in nappies to Halloween costumes and photos while bathing, and used these images to generate an income stream from the account, the child could argue the photos breach a privacy law.
Murdoch, a principal with Brisbane intellectual property an technology law firm Eaglegate Lawyers, says if the child subsequently demanded the images be removed and the parents refused to take them down, that’s when an issue arises.
Kidinfluencers refers to children who have strong social media following and whose accounts can generate hundreds of thousands of dollars in advertising revenue.
In effect mum and dad could be making a fortune in a home-based entrepreneurial enterprise from social media accounts that chart the life of their children.
But what happens if the children, as they get older, demand the images be removed or the account transferred to their ownership?
An increasing number of high-profile social media Influencers are profiting from accounts that depict, some might say exploit, their children.
The Australian profiled a famous Australian in Thailand, Matthew Deane, a 43-year-old singer, actor and Thai boxing MC, who has an online following of some 6.2 million between him, his wife and two children on Instagram.
For the Deane family, social media is one way they earn their income as their accounts are often linked to product contracts. Their children have huge social media followings orchestrated by their parents. However, Murdoch warns that in a situation where children become old enough to understand how they are being portrayed on social media accounts, getting their parents to close the accounts or remove images could be difficult.
Murdoch says one of the fastest ways to have photos removed would be to consider anti-bullying laws.
“Depending on the content of the material, one way to have the material removed would be to file a complaint with the eSafety Commissioner, they then may direct the service provider to take it down,” she explains. “If they won’t take it down and cannot get consent from parents, then they could proceed to court.”
If an issue over account ownership arises, “you might be able to claim for deceptive and misleading conduct as to who is really controlling the account,” Murdoch points out.
“The child may be able to establish a legal argument with a claim that they may have been exploited beyond child labour laws. Further there may be issues as to who is entitled to the income from the accounts. Where does the money go: the parent or the child?”
Children may find themselves in a similar situation to a lot of young actors, Murdoch says.
“You have to remember the child is a junior. On Instagram, you might run an argument that the work is being completed by the child,” she says.
In America, it’s common to see twins sharing a single role in a television series or movie in order to get around work hours limited by child labour laws, she says.
“The guardian would have to give consent for their child to work … now where that payment goes raises issues about their responsibility.”
“By extension the same argument could be applied to the use of children’s’ images to generate income on social media pages.”
“Above all if parents use their children to star in money making social media ventures they need to think ahead to when the child becomes aware of how they are being exploited, how the child feels about this and whether they want the account shut down or the income from it, considering it’s their face that drives the income stream,” she concludes.