NEW KIDFLUENCERS ON THE BLOCK: THE NEED TO UPDATE CALIFORNIA'S COOGAN LAW TO ENSURE ADEQUATE PROTECTION FOR CHILD INFLUENCERS.

• Date: 22 September 2022
• Author: Reardon, Joan
• Published date: 22 September 2022
• Author: Reardon, Joan

Contents Introduction I. History of Child Entertainer Protection A. Child Labor Generally B. Specific Protection for Child Entertainers II. The Right to Be Forgotten. A. The Right to Be Forgotten in Europe B. The Right to Be Forgotten in America III. The Rise of Kidfluencing A. The History of Influencing and Social Media B. Differences Between Kidfluencing and Traditional Child Entertainment C. History of Kidfluencer-Specific Regulation IV. Why Kidfluencers Need Protection A. Financial Exploitation B. Risks Associated with Loss of Privacy V. What Kind of Protection? A. Including Kidfluencers Under the Definition of Child Entertainers B. Further Updating the Coogan Law with Provisions that Specifically Protect Kidfluencers C. What Should Not Be Included VI. Difficulties Applying the Coogan Law to Kidfluencers A. Work and Play B. Compensation Style C. Parental Autonomy D. Debate Surrounding the Right to Be Forgotten Conclusion Introduction

2020's highest-earning YouTuber was ten-year-old Ryan Kaji, a social media influencer whose work yielded nearly $30 million over the course of the year. (1) Ryan's YouTube channel, Ryan's World, is updated daily with new videos, (2) the topics of which include everything from science experiments to Ryan's private life. (3) Ryan's work has generated over $200 million in retail sales, an Amazon Prime television show, a line of toys, and even a Macy's Thanksgiving Day Parade float. (4)

Because of his age, Kaji is not guaranteed to receive income generated from his work and has no guarantee of retaining personal privacy as an adult. Laws protecting child entertainers do not apply to children who work as social media influences. (5) As such, every cent of Ryan's earnings legally belongs to his parents, who are free to do what they please with Ryan's income.

This is the harsh reality for every child influencer in the United States. An influencer is a celebrity spokesperson who generates interest in an experience or product by posting about it on social media sites such as YouTube, TikTok, and Instagram. Influences make money by monetizing the traffic their media receives, which is measured by the number of followers, clicks, likes, or some other metric, depending on which social media platform they use. (6) Child influences, also known as "kidfluencers," are not afforded the same workplace protections as other children working in the entertainment industry despite working under similar conditions, generating income, and experiencing a significant amount of intrusion into their personal lives due to the invasive nature of their work. (7)

Paul Petersen, a former child star and the founder of A Minor Consideration, a support and advocacy group for former child performers, argues that California's Coogan Law, (8) which protects the income and rights of child entertainers within the state, should protect all kidfluencers who use California-headquartered social media platforms. (9) Because every top-ten social media platform is headquartered in California, (10) California's Coogan Law should be (1) updated to protect kidfluencers who use these platforms and (2) expanded to include specific provisions for kidfluencers that address the problems they face within their field. More specifically, the Coogan Law should be updated using France's recently passed kidfluencer protection law (11) as a framework for the updates. The French kidfluencer law includes a right to be forgotten--the ability to remove one's images from the internet upon command--and specific provisions that protect kidfluencers. (12) The right to be forgotten is important for all child entertainers, but is particularly important for kidfluencers, who may wish to remove certain aspects of their childhood from the public eye. Under the Coogan Law update, advertising companies and kidfluencers' parents would be legally responsible for failing to set aside a portion of kidfluencers' incomes. This would ensure that kidfluencers' incomes receive the protection that other child entertainers' incomes receive.

This Note is divided into several parts. Part I covers the history of child entertainer protection. Part II briefly addresses and describes the right to be forgotten. Part III covers the rise of kidfluencing worldwide. Part IV examines why protection for kidfluencers is needed. Part V explores what kind of protection is needed versus what kind of protection is not needed, and Part VI explores potential objections to the Coogan Law updates.

1. History of Child Entertainer Protection

   In order to understand why the Coogan Law kidfluencer updates are necessary, one must first understand the complex history behind the Coogan Law and child labor regulation in the United States, which is complicated by shifting employment practices, changing societal norms, and the risks and benefits of employing children. New technology in the workplace and the relatively safe nature of modern work have made employment easier and less hazardous for children. However, the modernization of some equipment has made the workplace much more dangerous, especially for children. (13)

   This Part is divided into two subparts. The first explores the early history of protecting child laborers. The second explores protections for child entertainers.

   1. Child Labor Generally

      Regulation directed specifically at child labor did not begin gaining traction as a contested topic in the United States until the early 1900s. Despite the detrimental effects work can have on a child's wellbeing, the 1900 census revealed that there were approximately two million working children in the United States. (14) This revelation sparked a national movement to regulate child labor throughout the country. (15)

      The federal government first attempted to regulate child labor in 1916 when Congress passed the Keating-Owen Act, (16) which prohibited the interstate sale of goods manufactured by children, indirectly regulating child labor via the federal government's power to regulate interstate commerce. Opponents contested the measure, arguing it was an inappropriate use of the federal government's Commerce Clause power. The Supreme Court accepted this argument in Hammer v. Dagenhart. (17) The Court held that Congress used its power to regulate interstate commerce as a proxy for regulating child labor, which was a power reserved for the states. (18)

      Hammer v. Dagenhart was intensely controversial, in part because it was a 5-4 ruling with a powerful dissent by Justice Holmes. (19) Even though the Keating-Owen Act regulated goods that crossed state lines, the majority reasoned that Congress did not have the power to prohibit the manufacture of goods that children produced because the Constitution does not explicitly give Congress the power to regulate child labor.

      As such, the Court determined that the regulation of child labor is a power reserved to the states. (20)

      The dissenting Justices believed that the Commerce Clause did in fact permit Congress to regulate all interstate commerce, regardless of the intent behind the regulation. (21) Justice Holmes also argued that Congress's power to regulate commerce and other constitutional powers "could not be cut down or qualified by the fact that it might interfere with the carrying out of the domestic policy of any State," (22) essentially arguing that any state's child labor policy could not override Congress's ability to regulate interstate commerce.

      Congress once again attempted to regulate child labor in 1919 when it passed the Revenue Act of 1919 (also known as the Child Labor Tax Law,23) which used the government's taxing and spending power to regulate child labor rather than its ability to regulate interstate commerce. (24) In Bailey v. Drexel Furniture Co., (25) the Supreme Court held that Congress's use of its taxing and spending power to regulate child labor was unconstitutional because Congress attempted to use its taxing power to regulate child labor, a right reserved to the states. (26) An 8-1 ruling in which the dissenter did not write separately, (27) Bailey was much less contentious than Dagenhart. The Court reasoned that even though Congress's power to tax and spend is broad, the Child Labor Tax Law was an improper use of its taxing and spending power because the law went beyond the limits set by the Constitution. The Court further held that the Child Labor Tax Law violated the Tenth Amendment because it limited states' ability to regulate the behavior of their citizens. (28)

      The rulings in Dagenhart and Bailey made it virtually impossible for Congress to pass legislation regulating child labor. Congresspeople who supported regulation of child labor vied to pass a constitutional amendment that would have granted Congress the ability to regulate child labor, the Child Labor Amendment. Despite its significant support, the movement stalled in the 1920s. (29)

      Congress did not manage to pass lasting federal legislation that protected child laborers until 1938, when it passed the Fair Labor Standards Act. (30) The Fair Labor Standards Act also set minimum wage and maximum hour rules that applied very broadly throughout the nation's industries. (31)

      The Supreme Court upheld the Fair Labor Standards Act in United States v. Darby. (32) Writing for a unanimous Court, Justice Stone affirmed Congress's power to regulate all interstate commerce. The Court held that the purpose of the Fair Labor Standards Act was to prevent a race to the bottom in which a state could use labor practices to attract businesses to the state's economic advantage. The Court determined that Congress acted within its power when it prohibited substandard labor conditions because those conditions had a substantial effect on interstate commerce. (33) It followed from Darby that the federal government does have the power to regulate child labor. As such, Darby explicitly overruled Dagenhart. (34)

      Under the Fair Labor Standards Act, employers may not use...