FEDERAL DECREE-LAW NO. (45) OF 2021 ON PERSONAL DATA PROTECTION

Through its Act no.2020-1266 dated 19 October 2020 (the Act), the French legislator elected to regulate the commercial exploitation of the images of children aged 16 and under on online platforms (Kidfluencers).

Despite the potentially lucrative consequences of these emerging practices, Kidfluencers operated in a legal vacuum which could have resulted in parents exploiting their children, without the latter reaping any financial benefits or regaining any control of their images upon coming of age.

First and foremost, the Act extends the existing legal framework of child models, under Article L7124-1 of the French Labor Code (FLC). As such, Kidfluencers will require a written authorization from the French Administration prior to being engaged or broadcasted, inter alia:

• By any entertainment provider, regardless of the medium or broadcast type;
• In order to perform “modeling activities,” broadly defined under Article L7123-2 FLC as presenting oneself, directly or indirectly through the reproduction of one’s image, either through photographs or video, notably by presenting a product, service of commercial message;
• By eSport competition organizers; and
• By “Employer whose activities consist in creating audiovisual recording whose main subject is a child aged 16 or under, for the purpose of for-profit broadcasting on an online video sharing platform”.

The latter category was notably introduced to characterize the parents or legal guardians of the influencers as the “employer” of the Kidfluencer. As they may not be as aware of the legal undertakings as the other providers and organizers mentioned, the Administration will provide them with specific information relating to the Kidfluencers’ rights and the risks associated with exhibiting their image online.

Moreover, a portion of the revenue gained by Kidfluencers would be placed in escrow on a French public bank account until their majority.

Secondly, in situation when the broadcast would not be performed for profit, the Act introduces additional protective measures for Kidfluencers: instead of a prior authorization, a simple declaration of the activity will be required, when the published content exceeds certain thresholds in terms of (i) duration or individual items; or (ii) direct or indirect revenues. Such thresholds will be addressed in a supplemental decree to be adopted shortly.

Failing to obtain the authorization or to proceed with the notification would entitle the Administration to seize a court in order to take down the related content.

Finally, the Act also implements a collaborative framework for the online video sharing platforms, and enjoin them to publish dedicated policies to aiming at

• Informing users of the applicable Kidfluencers’ regulatory framework;
• Informing Kidfluencers directly of the consequences on their private life of the broadcasting of their image, of the legal and psychological consequences and of the means they have to protect their rights and dignity;
• Encouraging users to report any content involving Kidfluencers that could affect their dignity, psychological or physical integrity;
• Preventing the processing of personal data relating to minors for commercial purposes, such as targeted advertisement, further to the broadcasting a Kidfluencers video;
• Detecting situations where the recording or broadcasting of Kidfluencers’ videos could impact their dignity, psychological or physical integrity; and
• Helping Kidfluencers to easily exercise their right to be forgotten on the video-sharing platforms.

While a welcomed step to protect children online, sometimes from their own families, the Act will need to be completed with regard to the thresholds triggering its applicability. In addition, by mainly addressing online video sharing platforms, the Act could have benefited from a more homogenous framework for online platform allowing the sharing of both still and moving pictures. Indeed, while still images could be included in the modeling provision, it remains to be seen how extensively it will be enforced.

Amidst the current discussions surrounding the Digital Services Act at the European level, this France-specific framework creates yet another undertaking for online platforms to implement additional measures to support public policies. And by encouraging users to report any content involving Kidfluencers that could affect their dignity, psychological or physical integrity, the Act could generate extra-territorial consequences, forcing the platforms to deploy such reporting mechanism at a global scale.

K&L Gates IP/IT team in Paris remains available to assist you in assessing the changes triggered by this Act. Please get in touch if you would like to discuss the steps that your organization might want to consider to prepare now for this new Kidfluencer framework.

First publication: K&L Gates Fashion Law Watch