Honey, I Monetized the Kids: Commercial Sharenting and Protecting the Rights of Consumers and the Internet's Child Stars

• Author: Melanie N. Fineman
• Position: Georgetown University Law Center, J.D. 2023; Brown University, A.B., 2014
• Pages: 847-890

NOTES

Honey, I Monetized the Kids: Commercial Sharenting

and Protecting the Rights of Consumers and the

Internet’s Child Stars

MELANIE N. FINEMAN* TABLE OF CONTENTS

INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 848

I. PARENTS ARE SHARENTING FOR COMMERCIAL GAIN . . . . . . . . . . . . . . . . . 854

A. COSTS CAN OUTWEIGH COMMERCIAL SHARENTING’S BENEFITS . . . . . 857

1. Commercial Sharenting Has Privacy-Related

Repercussions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 859

2. Commercial Sharenting Creates Mental Health

Concerns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 862

II. COMMERCIAL SHARENTING SHOULD BE FRAMED AS A COMMERCIAL

INTEGRITY ISSUE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 866

A. COMMERCIAL SHARENTING CAN BE MISLEADING . . . . . . . . . . . . . . . . 866

B. THE FTC HAS MADE CLEAR THAT MISLEADING CONTENT IS

PROBLEMATIC........................................... 870

C. COURTS HAVE EXPRESSED CONCERNS REGARDING MISLEADING

COMMERCIAL CONTENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 874

III. COMMERCIAL SHARENTING SHOULD BE FRAMED AS AN ISSUE THAT

RAISES CHILD LABOR CONCERNS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 877

A. THE CHILD STARS OF COMMERCIAL SHARENTING POSTS LACK LEGAL

PROTECTION............................................. 877

* Georgetown University Law Center, J.D. 2023; Brown University, A.B., 2014. © 2023, Melanie N.

Fineman. This Note has been a labor of love—many thanks to everyone who has supported me along

every step of the marathon to publication, especially Professor Stephanie Inks, William Greco, and my

colleagues, the editors and staff members of Volume 111 of The Georgetown Law Journal. This Note is

dedicated to Peggy and David Fineman, Elvis and Robert Goldsmith, and Myra and Manuel Fineman,

who always encouraged me to be my authentic self (even in front of the camera) and believed in me as a

writer and advocate. All errors are my own.

847

B. WHEN COMMERCIAL SHARENTING, PARENTS CAN ENCOURAGE

CHILDREN TO POST AGAINST THEIR WILL FOR THEIR OWN BENEFIT. . 881

IV. PRESENTING COMMERCIAL SHARENTING AS A COMMERCIAL INTEGRITY

AND/OR CHILD LABOR ISSUE CAN SPUR EFFORTS TO PROTECT CHILDREN . . 883

A. THE LAW’S STRONG PARENTAL RIGHTS PROTECTIONS ARE NOT

ABSOLUTE AND LEAVE ROOM TO ADDRESS COMMERCIAL

SHARENTING............................................ 883

B. THE PROPOSED FRAMING CAN HELP DRIVE ACTION . . . . . . . . . . . . . . 885

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 888

INTRODUCTION

According to Adam Ali, his daughter “Samia’s birth video is on YouTube, so

she’s pretty much been born into social media.”

1

Sapna Maheshwari, Online and Making Thousands, at Age 4: Meet the Kidfluencers, N.Y. TIMES

(Mar. 1, 2019), https://www.nytimes.com/2019/03/01/business/media/social-media-influencers-kids.html.

Katie Stauffer’s twins have

“grown up on their mom’s Instagram account.”

2

Remy Smidt, This Mom’s Full-Time Job Is Posting to Instagram and This Is What It’s Like,

BUZZFEED NEWS (Jan. 25, 2018, 8:45 AM), https://www.buzzfeednews.com/article/remysmidt/mila-

emma-katie-stauffer [https://perma.cc/JB9J-T8W5].

Sarah and Johnny Tanner shared

posts with their audience of 1.48 million online subscribers of their daughter

learning how to shave her legs and shopping for her first bra at age eleven.

3

Danya Hajjaji, YouTube Lets Parents Exploit Their Kids for Clicks, NEWSWEEK (Oct. 4, 2021, 9:00

AM), https://www.newsweek.com/youtube-lets-lawless-lucrative-sharenting-industry-put-kids-mercy-

internet-1635112 [https://perma.cc/P796-3NAK].

These featured children are objects of commercial sharenting—“[w]hen

parents overshare photos and other data about their children on social media”

4

For a definition of “sharenting,” see Kendall Ciesemier, Taige Jensen & Nayeema Raza, If You

Didn’t ‘Sharent,’ Did You Even Parent?, N.Y. TIMES, at 00:26 (Aug. 7, 2019), https://www.nytimes.

com/2019/08/07/opinion/parents-social-media.html. “Sharenting” has also been described as applying

to “primary caregivers.” Beth Ann Mayer, Why Parents Overshare on Social Media and When It

Might Be Dangerous, PARENTS (Feb. 1, 2022), https://www.parents.com/parenting/better-parenting/

sharenting-meaning-and-when-it-might-be-dangerous [https://perma.cc/UQL6-4QGA].

for

commercial gain.

5

The term “sharenting” was launched in a 2012 Wall Street

1.

2.

3.

4.

5. Commercial sharenting relates to “sharenting” in a commercial context. In the words of Harvard

Law’s Leah Plunkett, when parents commercially sharent, they “are taking [their] child, or in some

cases, [their] broader family’s private or intimate moments, and sharing them digitally, in the hope of

having some kind of current or future financial benefit.” Katie Collins, TikTok Parents Are Taking

Advantage of Their Kids. It Needs to Stop, CNET (Aug. 7, 2022, 5:00 AM), https://www.cnet.com/tech/

services-and-software/tiktok-parents-are-taking-advantage-of-their-kids-it-needs-to-stop [https://perma.

cc/6UV7-J3EQ]. Per Plunkett, the gain from commercial sharenting “could be immediate compensation,

development of business interests for future compensation, or other forms of current or potential revenue

generation. Revenue may come from a variety of sources, including marketing agreements with

businesses to promote a given product or service and other partnerships or deals . . . .” LEAH A.

848 THE GEORGETOWN LAW JOURNAL [Vol. 111:847

PLUNKETT, SHARENTHOOD: WHY WE SHOULD THINK BEFORE WE TALK ABOUT OUR KIDS ONLINE 55

(2019).

Journal article about parents seeking to gain attention online.

6

See Steven Leckart, The Facebook-Free Baby, WALL ST. J. (May 12, 2012, 12:01 AM), https://

www.wsj.com/articles/SB10001424052702304451104577392041180138910.

This content has

grown on parent-managed accounts on a variety of platforms ever since,

7

includ-

ing for commercial gain.

8

Some parents began posting on social media as early as

when Facebook launched in 2004;

9

See Making the News: “Sharenting” in the Modern World, FIRST 5 L.A., https://www.first5la.org/

article/making-the-news-sharenting-in-the-modern-world [perma.cc/TS77-RUUX] (last visited Mar. 17,

2023).

“mommy bloggers” started sharing their par-

enting stories online around that time as well.

10

“Mommy bloggers” started posting as early as one year later, in 2005. See Kathryn Jezer-Morton,

Did Moms Exist Before Social Media?, N.Y. TIMES (Apr. 16, 2020), https://www.nytimes.com/2020/04/

16/parenting/mommy-influencers.html; see also Kathryn Jezer-Morton, Inside the World of Stay-at-

Home Moms Who Blog for Profit, BUZZFEED NEWS (Apr. 19, 2019, 11:26 AM) [hereinafter Jezer-

Morton, Inside the World], https://www.buzzfeednews.com/article/kathrynjezermorton/stay-at-home-

mom-blogs-mommy-blogging-printables-shopify [https://perma.cc/2M3W-8BR4] (discussing the history

of early “mommy blogs”); Kathryn Jezer-Morton, Online Momming in the ‘Perfectly Imperfect’ Age, CUT

(Apr. 10, 2019), https://www.thecut.com/2019/04/online-moms-mommyblogs-instagram.html (same). At

the time, perhaps “[t]he world was unprepared for the mom bloggers.” Margaret Wheeler Johnson, The

Kids of Mom Bloggers Are Old Enough to Read It All Now. What Do They Think?, ROMPER (Aug. 17,

2022), https://www.romper.com/parenting/kids-of-mommy-bloggers-interview [https://perma.cc/KHA8-

42ZG]. Nevertheless, the blogs have in part been credited for sparking influencer marketing. See id.; Lyz

Lenz, The Mommy Blog is Dead. Long Live the Mommy Blog, TOPIC (May 2019), https://www.topic.com/

the-mommy-blog-is-dead-long-live-the-mommy-blog [https://perma.cc/KV5U-H25J]. This credit has not

been as robust as it could be. See Johnson, supra.

The increase in social media plat-

forms—such as Facebook, Instagram, and TikTok—has furthered this spread,

11

Large online followings are not necessarily essential to having persuasive commercial sharenting

posts. See Gerardo A. Dada, What Is Influencer Marketing and How Can Marketers Use It Effectively?,

FORBES (Nov. 14, 2017, 8:00 AM), https://www.forbes.com/sites/forbescommunicationscouncil/2017/

11/14/what-is-influencer-marketing-and-how-can-marketers-use-it-effectively (“One of the biggest

misconceptions about influencers is that they are someone with a large social media following. This

thinking confuses influence with popularity. The act of influencing requires a specific result: a change in

thinking or behavior. An influencer, therefore, is someone who has the power to influence the perception

of others or gets them to do something different.”).

as have the opportunities to make immense sums of money online from posts cen-

tered around child stars.

12

6.

7. See Leah Plunkett, To Stop Sharenting & Other Children’s Privacy Harms, Start Playing: A

Blueprint for a New Protecting the Private Lives of Adolescents and Youth (PPLAY) Act, 44 SETON

HALL LEGIS. J. 457, 460 (2020) (“While social media may be the most visible of these activities, there

are countless others.”).

8. University of Western Australia’s Crystal Abidin has been discussing “micro-microcelebrities,”

babies and toddlers who have significant online followings and earn thousands of dollars online, since at

least 2015. See Crystal Abidin, Micromicrocelebrity: Branding Babies on the Internet, 18 M/C J., no. 5,

2015.

9.

10.

11.

12. See Taylor Mooney, Companies Make Millions Off Kid Influencers, and the Law Hasn’t Kept Up,

CBS NEWS (Aug. 26, 2019, 6:19 AM), https://www.cbsnews.com/news/kid-influencers-companies-

make-millions-law-hasnt-kept-up-cbsn-originals [https://perma.cc/2HRP-KTUC]

2023] HONEY, I MONETIZED THE KIDS 849

. The financial benefits

of commercial sharenting will be discussed later in this Note. See infra Section III.B.