Child Exploitation and YouTube
3rd year BA LLB,
Christ (deemed to be) University.
Abstract
Section 3 of the Child and Labour (Prohibition and Regulation) Act 1986, prohibits the employment of children in any of the occupations listed in Schedule A and any process listed in Schedule B of the Act with limited exceptions. In July 2017, India ratified two conventions of the ILO. Prior to this, the central government had made two significant changes in the form of Amendments to the Act and Rules in 2016 and 2017 respectively.
Children have been and continue to be valuable contributors to the entertainment industry. The amended act defines a child artist as someone who practises or performs any work as a hobby or profession that is connected to the area of entertainment or sports. The ever-changing contours of entertainment ensures that newer forms of intermediaries and platforms like YouTube become hubs for the development of child-centred content. Recently, the site saw an explosion of content that heavily featured really young children which gained popularity almost immediately making it a very profitable endeavour. The content creators are often referred to as ‘family vlogging’ channels with the daily life of the child and their parents as the main focal point of the video.
The researcher through this paper would seek to analyse whether the scope of the existing labour laws can be extended to content that revolves primarily around children and their personality or mannerisms. Another important aspect is with reference to the kinds of benefits that could be extended to these performers and the liability of YouTube and other content sharing platforms in such cases.
Paper
YouTube has emerged as one of the world’s largest streaming services. According to its 2019 estimates over 500 hours’ worth of content is uploaded every minute[1]. This vast amount of content is spread across various forms and perhaps one of the most lucrative and quickly emerging form is that of ‘family vlogging’. The term has not been officially defined under any law but it broadly refers to a specific category of videos in which certain aspects of an individual’s daily life are put up online. The primary videographers are the parents while children as young as infants are the subject of such videos and it features them in some of the most intimate and vulnerable settings. Many consider this form of content as ethically wrong and violative of a child’s privacy. In 2019, a mother in Arizona running the popular YouTube channel ‘Fantastic Adventures’ was arrested for allegedly abusing her 7 adopted children who featured prominently in her videos by hitting them or spraying them with pepper spray and starving them if they disobeyed or did not perform adequately. She would also punish them by locking them in a cupboard and denied them food for days. The channel has a cumulative view count of over 250 million views. Her videos were scripted and the children were made to memorize and deliver lines. [2] In 2017, the parents behind the popular channel DaddyOFive were sentenced to five years of probation for child neglect. In their videos they would often break the toys of their children and yell and scream profanities at them which would cause extreme anxiety and stress to the children who appeared visibly affected by the actions of their parents.[3]With the continued growth in the popularity of these types of videos, a strong need to regulate the activities of parents has arisen.
The protection of minors from violence and other forms of exploitation is a recognized principle both internationally and in Indian jurisprudence. The Constitution of India vide the numerous Articles, envisages the creation of an environment in which children can be protected. The law also recognizes and grants a certain level of autonomy and agency to children. The United Nations Convention on the rights of the child and its four General Principles have played a pivotal role in the establishment and amendments of laws in India. The advancements in technology have resulted in the emergence of newer challenges that demand the attention of the law. India witnessed tow amendments in the law, one in 2016 and the subsequent amendment in 2017. These were done in part to endure compliance with two International Labour Organization Conventions (a) Convention No 182 which deals with the prohibition and elimination of the worst forms of child labour, including slavery, forced labour and trafficking; the use of children in armed conflict; the use of a child for prostitution, pornography and in illicit activities (such as drug trafficking); and hazardous work. (b) Convention No 138 which mandates that state parties set a minimum age under which no one shall be admitted to employment or work in any occupation, except for light work and artistic performances.[4]
Section 3 of the Child Labour Prohibition and Regulation Act of 1986 provides an explicit bar on the employment of children in certain occupations (Schedule A) and processes (Schedule B). The section however, does make certain exceptions with that regard. The first important one being, that employment is not prohibited when it is with reference to any family enterprise which is not hazardous if the same is conducted after school hours or during holidays. Secondly and most significantly, it provides an exception when the child works in an audio-visual industry or is involved with sports. In 2016, the law was amended and a new definition of family artist was included[5]. The scope of family was widened to include parents, siblings and aunts and uncles. The definition of artist is as follows:
“(c) ‘‘artist’’ means a child who performs or practices any work as a hobby or profession directly involving him as an actor, singer, sports person or in such other activity as may be prescribed relating to the entertainment or sports activities falling under clause (b) of sub-section (2).’’ With respect to children working in the TV or Film Industries, the Child Labour (Prohibition and Regulation) Amendment Rules, 2017 under Rule 4 provides a strict code of conduct that producers are expected to follow. [6] These rules include:
1. No child is allowed to work for more than five hours a day and not longer than 3 hours without any rest. Further, no child is supposed to work against their will and consent.
“(c) ‘‘artist’’ means a child who performs or practices any work as a hobby or profession directly involving him as an actor, singer, sports person or in such other activity as may be prescribed relating to the entertainment or sports activities falling under clause (b) of sub-section (2).’’ With respect to children working in the TV or Film Industries, the Child Labour (Prohibition and Regulation) Amendment Rules, 2017 under Rule 4 provides a strict code of conduct that producers are expected to follow. [6] These rules include:
1. No child is allowed to work for more than five hours a day and not longer than 3 hours without any rest. Further, no child is supposed to work against their will and consent.
2.The producer of any audio-visual media production or any commercial event involving a child must obtain the permission from the District Magistrate where such activity is scheduled to occur and shall furnish an undertaking in the manner of Form C (found in the Rules) prior to the commencement of such activities. The undertaking shall be valid for six months and shall clearly state the provisions for education, safety, security and reporting of child abuse in consonance with the guidelines and protection policies issued by the Central Government. Some of these guidelines include;
(i) ensuring facilities for physical and mental health of the child;
(ii) timely nutritional diet of the child;
(iii) safe, clean shelter with sufficient provisions for daily necessities; and
(iv) compliance to all laws applicable for the time being in force for the protection of children, including their right to education, care and protection, and against sexual offences;
3.The Producer must also provide a list of the child participants, proof of consent from parents or guardians and the name of the individual who is responsible for the safety of the child on site. The person designated as the individual responsible can account for around 5 children and must ensure that the best interest of the child is protected.
4.Further, the display of a disclaimer specifying that the necessary measure
s were taken to ensure that there has been no abuse, neglect or exploitation of such child during the entire process of the shooting
s were taken to ensure that there has been no abuse, neglect or exploitation of such child during the entire process of the shooting
5. No child will be allowed to work consecutively for a period longer than twenty-seven days and appropriate facilities must be provided to ensure the continuity of his education.
6. At least twenty per cent of the income duly earned must be deposited in a fixed deposit account in a nationalized bank in the name of the child which can be accessed only on attaining majority
The law further goes on to define “any activity” to mean,
(i) any activity where the child himself is participating in a sports competition or event or training for such sports competition or event;
(i) any activity where the child himself is participating in a sports competition or event or training for such sports competition or event;
(ii) cinema and documentary shows on television including reality shows, quiz shows, talent shows; radio and any programme in or any other media;
(iii) drama serials;
(iv) participation as anchor of a show or events; and
(v) any other artistic performances which the Central Government permits in individual cases, which shall not include street performance for monetary gain.’[7]
Similarly the National Commission for the Protection of Child Rights had issued its guidelines in 2011 titled as the ‘Guidelines to Regulate Child Participation in TV Serials, Reality Shows and Advertisements 2010-2011.’ These guidelines were framed on the basis of the best interest principle under the Convention of the Rights of the child and under Article 32 of the same which discusses the need to prevent the economic exploitation of a child especially performers.[8] The guidelines are pretty straight forward and as the name suggests seeks to establish a redressal board. It also mandates the creation of a child protection policy and lists down the criteria to be followed when it comes to the portrayal of children in these mediums.
The laws above seems very clear and precise and are made with the intention of creating a positive environment in which the creativity and individuality is nurtured and protected. These laws closely resemble the provisions present in the Californian Coogan Laws which came after a former child star sued his family and others when he realised that he did not have any of the income he earned from various projects he was apart of as a child. He was soon left without any future prospects and could not find any means to support himself. According to the laws 15% of the income so earned must go into a block trust created in favour of the child that cannot be accessed until they are 18 years old. Section 771 of the California Family Code states that not only is the 15% the property of the minor, but that the income so generated does not qualify as family money and is the sole property of the child.[9]
The main issue with large family vlogging channels is that they feature the daily lives of young children who simply do not have the capacity to consent for the same. They are forced to constantly perform and put on their best face often with large and exaggerated expressions. Intimate and personal details about their lives are shared online for millions to watch. Professor John Oates, the founder of the British Psychological Society’s Media Ethics Advisory Group works on the creation of ethical advertisement standards that do not adversely impact the performer and other children. According to him, the content created must not infantilize the child which means that they must not be made to perform non-age appropriate behaviour.[10] Pa
rents are well aware of the lucrative nature of the content and often record the child in some of their most vulnerable point in life. In one video, the parents of a child told their 6-year-old child that they were giving away her puppy because she ‘wasn’t taking good care of it.’ The child then cried and begged for that not to happen and appeared in great distress. The parents then revealed that it was a prank. [11]
rents are well aware of the lucrative nature of the content and often record the child in some of their most vulnerable point in life. In one video, the parents of a child told their 6-year-old child that they were giving away her puppy because she ‘wasn’t taking good care of it.’ The child then cried and begged for that not to happen and appeared in great distress. The parents then revealed that it was a prank. [11]
The constant exposure to the online world and the blurring of lines between professional spaces and a safe home environment is not only a gross violation of labour laws, but it also has the potential to cause severe impacts on the cognitive and psychological health of the child. Children are then seen as the employees of the parents and are made to work to their full potential for the monetary gain. Most children with popular channels do not go to a formal schooling system and may not be able to pursue higher forms of education. The creation of a persona is crafted by the parents and there is little to no alternatives left for the child. They form an identity based around the one crafted for them. This would lead to larger issues cornering identity formation in the latter part of their growth.[12]
India is not far behind when it comes to content featuring children. The channel ‘MyMissAnand’ currently has over 1.4 million subscribers and has 230 million plus cumulative views. The channel features content by Anayanta whose first video on the channel was at age 5. The laws described above are seemingly comprehensive and contemplates the existence of an organizational structure to handle such issues. However, these laws cannot be enlarged in terms of its scope to cover children on YouTube. The content uploaded on YouTube falls under the bracket of ‘user generated content’ which means that the source of the content is the individual channel user i.e., the parents and the children. This structure is different form that of a regular Television show which involves a large and more exhaustive production team.[13]The problem in regulation arises in terms of classification of content and a determination of what constitutes appropriate activities. The laws in India seemingly do not cover user generated content which means that such type of content is currently unregulated in India. The scope of these laws needs to be enlarged to include such content or a separate set of guidelines must be adopted to tackle the issue separately.
According to YouTube’s own community guidelines, a person below age 13 cannot set up an account. These channels are largely operated and negotiated by the parents of the kids hence, an extension of the existing labour laws to cover content that heavily feature them will ensure that their financial, physical and emotional health is safely taken care of. [14]Veena Dubal, a law professor at University of California argues that the site has a much larger obligation to its children than just merely informing their parents about the existence of Labour laws. She argues that YouTube is a joint employer of the child as it controls what the child can and cannot do especially in terms of receiving remuneration.[15]The duties performed by these children can be construed to constitute actual work and they must receive remuneration accordingly. The position in India remains unclear as there is no law that expressly deals with the same. However, as mentioned above these laws must be duly extended to protect children from exploitation which is the intent of the act. In the case regarding the DaddyOFive situation, YouTube terminated the account of the parents while they lost custody of their children. A stronger compliance of YouTube’s own community guidelines can serve as primary aid when it comes to matters such as these as it involves a more local application of some form of regulations. However, it is highly unlikely that the self-regulated system will be free from biases and would actually be effective.[16]
In conclusion, YouTube as a hosting site provides an opportunity for millions of people to explore creative avenues that were closed before and many children seemingly benefit from the same. The internet loves to reward young geniuses who capture the hearts and minds of the audience. A balance must be made that adequately addresses the needs of the child including their physical and mental well being on the one hand while not stifling or inhibiting the artistic and creative growth of the child on the other. The concept of family vlogging is inherently not a bad one. There is nothing wrong with the desire to want to share certain parts of a person’s life, but the same cannot be carried out at the expense of children. The best interest of t
he child must be the deciding factor that guides the hands of legislators.
he child must be the deciding factor that guides the hands of legislators.
[1] Tubefilter. (2019). More Than 500 Hours Of Content Are Now Being Uploaded To YouTube Every Minute – Tubefilter. [online] Available at: https://www.tubefilter.com/2019/05/07/number-hours-video-uploaded-to-youtube-per-minute/ [Accessed 18 Feb. 2020].
[2]Durkin, E. (2019). YouTube child stars allegedly abused and forced to perform by adoptive mother. [online] the Guardian. Available at: https://www.theguardian.com/us-news/2019/mar/20/youtube-fantastic-adventures-machelle-hackney-arrested-abuse-adopted-children [Accessed 21 Feb. 2020].
[3] Levin, S. (2017). Couple who screamed at their kids in YouTube ‘prank’ sentenced to probation. [online] the Guardian. Available at: https://www.theguardian.com/us-news/2017/sep/12/youtube-parents-children-heather-mike-martin [Accessed 21 Feb. 2020].
[4] Ilo.org. (2019). India ratifies both fundamental ILO Conventions on Child Labour. [online] Available at: https://www.ilo.org/global/about-the-ilo/newsroom/news/WCMS_557295/lang–en/index.htm [Accessed 21 Feb. 2020].
[5] SCC. (2016). Child Labour (Prohibition and Regulation) Amendment Act 2016: Key Concerns and Issues | SCC Blog. [online] Available at: https://www.scconline.com/blog/post/2016/09/30/child-labour-prohibition-and-regulation-amendment-act-2016-key-concerns-and-issues/ [Accessed 18 Feb. 2020].
[6] Mondaq.com. (2020). Child Actors And Child Labour Laws. [online] Available at: https://www.mondaq.com/india/Media-Telecoms-IT-Entertainment/614290/Child-Actors-And-Child-Labour-Laws [Accessed 18 Feb. 2020].
[7] Lexology.com. (2020). Child Actors and Child Labour Laws | Lexology. [online] Available at: https://www.lexology.com/library/detail.aspx?g=4b1271e1-9d9f-43fc-8e0f-b991985c994b [Accessed 18 Feb. 2020].
[8] Copyright.lawmatters.in. (n.d.). Guidelines Regulating Child Television Performances. [online] Available at: https://copyright.lawmatters.in/2012/03/guidelines-regulating-child-television.html [Accessed 21 Feb. 2020].
[9] Backstage.com. (2020). Everything You Need to Know About Your Child Actor’s Money (From the Mom of a Child Actor). [online] Available at: https://www.backstage.com/magazine/article/everything-need-know-child-actors-money-65122/ [Accessed 18 Feb. 2020].
[10] Newstatesman.com. (2017). Are we failing to protect the child stars of YouTube?. [online] Available at: https://www.newstatesman.com/science-tech/internet/2017/11/are-we-failing-protect-child-stars-youtube [Accessed 21 Feb. 2020]
[11] NBC News. (n.d.). YouTubers Cole and Savannah LaBrant’s prank on 6-year-old daughter about puppy sparks backlash. [online] Available at: https://www.nbcnews.com/news/us-news/youtubers-cole-savannah-labrant-s-prank-6-year-old-daughter-n990156 [Accessed 21 Feb. 2020].
[12] Jansen, M., Mironiuc, A. and Jong, D. (n.d.). Growing up on YouTube – How family vloggers are establishing their children’s digital footprints for them. [online] Masters of Media. Available at: https://mastersofmedia.hum.uva.nl/blog/2017/10/23/growing-up-on-youtube-how-family-vloggers-are-establishing-their-childrens-digital-footprints-for-them/ [Accessed 21 Feb. 2020].
[13] ibid
[14] Wong, J. (n.d.). ‘It’s not play if you’re making money’: how Instagram and YouTube disrupted child labor laws. [online] the Guardian. Available at: https://www.theguardian.com/media/2019/apr/24/its-not-play-if-youre-making-money-how-instagram-and-youtube-disrupted-child-labor-laws [Accessed 21 Feb. 2020].
[15] Ibid
[16] Study Breaks. (n.d.). The Moral Case Against Family Vloggers. [online] Available at: https://studybreaks.com/tvfilm/problem-family-vloggers-youtube/ [Accessed 21 Feb. 2020].