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Influencing “Kidfluencing”: Protecting Children by Limiting the Right to Profit From “Sharenting”

Posted by on Friday, July 28, 2023 in Notes, Volume 25, Volume 25, Issue 4.

Charlotte Yates | 25 Vand. J. Ent. & Tech. L. 845 (2023).

Statistics on children’s digital presences are staggering, with an overwhelming majority of children having unique digital identities by age two. The phenomenon of “sharenting” (parents sharing content of their children on social media) can start as early as a sonogram photo or a birth video and evolve into parent-run Instagram and TikTok accounts soon after. Content is often intimate, sometimes embarrassing, and frequently shared without children’s consent. Sharenting poses a myriad of risks to children including identity theft, digital kidnapping, exposure to child predators, emotional trauma, and social isolation. In the face of such significant risks to children’s well-being, one can only hope that parents will take care in deciding what information to share about their children online or whether to share at all. In recent years, that delicate risk calculus has been skewed by the potential to garner immense wealth from sharing content about children on sites like YouTube, TikTok, and Instagram.

It is high time that regulations protect the rights and privacy of children online. However, attempts to regulate sharenting itself will struggle to overcome the strong countervailing parental constitutional rights to free speech and parental autonomy. This Note proposes limiting the ability to profit from sharenting so that settled parental rights are undisturbed while the perverse incentive to expose children to immense risk for the possibility of profit is mitigated. This Note: (1) provides an overview of the phenomenon of sharenting, (2) surveys the current regulatory framework and its lapses in adequately protecting child influencers, (3) addresses the strong countervailing parental rights to parental autonomy and free speech, and (4) introduces an incentives-based solution to reduce the incidence of harmful child exposure online while respecting parental rights.

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