ARTICLE
29 April 2024

Regulating The Spotlight: Navigating The Legal Landscape Of Child Social Media Influencers In Digital Marketing

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Luthra and Luthra Law Offices India

Contributor

Luthra and Luthra Law Offices India is a pioneer in commercial legal advice, which is based on its deep understanding of clients’ businesses across diverse sectors and jurisdictions. The Firm is known today for its adeptness to identify and mitigate risks for its clients by providing top-notch legal solutions. Our 55 Partners and over 300 members, spread across New Delhi, Mumbai, Bengaluru, Hyderabad, and Chennai work closely together with our clients to find the best possible solutions. In keeping with the Firm’s legacy of offering exceptional legal solutions and client advice; teams at the Firm ensure that clients receive practical, innovative and cost-effective advice in a responsive manner, while upholding the highest ethical standards. Enormous amounts of knowledge, experience and commitment, successfully help close/ resolve complex and high value transactions & disputes, with practical and creative legal solutions.
In recent years, the phenomenon of Child Social Media Influencers has swept across India, captivating audiences with their charming antics and powerful endorsements.
India Media, Telecoms, IT, Entertainment
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Introduction

In recent years, the phenomenon of Child Social Media Influencers has swept across India, captivating audiences with their charming antics and powerful endorsements. As these young stars rise in prominence on platforms like Instagram, YouTube, and Facebook, their integration into digital marketing strategies by companies and advertising agencies has intensified. However, this trend raises significant legal and ethical questions. India's current regulations concerning child labor and advertising are under scrutiny as they attempt to keep pace with the rapidly evolving digital landscape. As stakeholders navigate this complex terrain, the need for clear, enforceable guidelines that protect young influencers while supporting industry growth has never been more urgent.

We begin by asking-what are the relevant laws that govern the engagement of Child Social Media Influencers?

While there are no specific laws and regulations governing engagement and collaborations with Child Social Media Influencers, some of the applicable laws that we have analysed for the purpose of this article are as follows:

i. Indian Contract Act, 1872 ("ICA");

ii. Child and Adolescent Labour Act, 1986 ("CLPRA");

iii. Child Labour (Prohibition and Regulation) Rules, 1988 ("Rules"); and

iv. 'Guidelines for Child and Adolescent Participation in the Entertainment Industry and any Commercial Entertainment Activity', issued by the National Commission for Protection of Child Rights, Ministry of Women and Child Development, Government of India, dated May 18, 2023 ("NCPCR Guidelines").

(CLPRA, Rules, and NCPCR Guidelines are to be collectively referred to as "Child Labour Laws").

Many entities contemplating the engagement of Child Social Media Influencers are faced with a multitude of important considerations and questions. In this article, we aim to address some of these pertinent questions and concerns to provide clarity and guidance to those contemplating such a collaboration.

Can a Child Social Media Influencer enter into a valid contract?

The parties to a contract having capacity and being competent to contract is a precondition for any agreement to be considered valid and enforceable by law. Section 11 of the ICA delineates the prerequisites for determining whether a person is competent to enter into a contract or not. As per the foregoing provision, a person's competency to contract is contingent upon three key factors: (i) attaining the age of majority; (ii) possessing a sound mind; and (iii) not being prohibited by any applicable law from entering into a contract.

It is understood that a minor i.e., a person who has not attained 18 or 21 years of age (in the event of being under the care of a court-appointed legal guardian) is not competent to contract and as such, no contract can be entered into with a minor. The Privy Council in Mohori Bibee v Dharmodas Ghose[1] held that contracts with minors are void ab initio. This understanding then leads to the next pertinent question:

Can a Parent or Legal Guardian of a Minor Social Media Influencer enter into a binding contractual obligation on their behalf?

The case of 'Raj Rani v. Prem Adib'2 (hereinafter referred to as the "Cine Star" case) provides that service contracts with minors are void and unenforceable despite being beneficial to the minor, whether entered by the guardian or minors themselves.3 There are primarily two reasons for this: first, due to lack of competence, a minor's promise to provide service does not provide good consideration to form a valid contract. By extension, consideration is absent in a guardian's promise assuring the other party of the minor's obligation to serve. Second, a guardian cannot contract 'on behalf' of a minor due to the law of agency.4 In this case, the High Court of Bombay treated the guardian as a minor's agent and under the ICA a minor was incapable of employing an agent.5 Consequently, a beneficial arrangement (except for necessaries) with a minor was not binding on the other party, the guardian, or the minor.

As a result of the judicial interpretation adopted by Indian courts in relation to service contracts with minors (or on their behalf by their guardians), minors could neither 'sue for contractual damages' for what they believe were contracts, nor could such an action be taken against them. As seen in the Cine Star case, a film producer was successfully able to avoid a partly executed work arrangement benefitting a minor artist by contending the non-existence of the contract. Despite the minor claiming that she was willing to work on set, the court held that the film producer was not required to pay damages for an unpaid salary of INR 8,708.10 and consequently, a mere INR 791.54 was received for attending shootings and/or rehearsals.6

The lack of an enforceable contract does not imply that the minor would be left without any remedy for the work done/services provided by him. It is just that the remedy would not be in the form of contractual rights. The entitlement of minors to sue for compensation is premised on whether their performance is executed or executory. Where performance has been completed (executed) for the minor and the other party i.e. a company or an advertising agency is unjustly enriched, the other party is required to restore any benefit received or pay compensation.7 Where the minor is yet to perform or has partly performed (executory),8 say, under an arrangement where the other party agrees to pay the minor after completing a film, tournament, or any other performance, the minor has no scope of suing for relief.

In light of the provisions highlighted above and various judicial precedents on the subject matter, it is clear that the contracts being entered into on behalf of minors by their guardian for services to be rendered by the minors are void ab initio. As such, these contracts will not be enforceable in any court of law.

Therefore, a company or an advertising agency cannot seek damages or specific performance to enforce a contract against a minor or his legal guardian, however, if such a minor were to have completed his obligations under an agreement and were to have provided the services under such agreement, the company or an advertising agency would be liable under law to compensate such minor for the same.

While there exists a lacuna in conferring legality to agreements of services entered into with minors or their guardians, employment/labour laws in India recognize the existence of commercial relationships with minors, particularly in the entertainment industry. Such labour/employment laws have therefore provided safeguards for minors who are engaged in various activities in the entertainment industry. This brings us to the next pertinent question as to what labor laws apply to the engagement of a minor performing activities within the entertainment sector.

Whether the engagement of a Child Social Media Influencer fall within the contours of labour laws and other regulations?

Prohibition of Child Labour:

The principal regulation which prohibits and/or regulates any form of child labour is CLPRA. The foundation of this legislation stems from the constitutional directive outlined in Article 24 of the Constitution of India, which expressly prohibits the employment of children under the age of 14 in hazardous occupations, including factories and mines.

The CLPRA regulates the conditions of working of 'Adolescents'9 in non-hazardous activities, and prohibits the employment of a 'Child'10 in any occupation or process unless specifically exempted.

Based on a perusal of Section 3 of CLPRA it is understood that a Child may only be permitted to be engaged in employment in the following two scenarios: (i) the Child is being engaged as an artist (as defined under Explanation (c) of Section 3 of CLPRA) ("Artist") in an audio-visual entertainment industry, including advertisement, films, television serials, or any such other entertainment or sports activities except the circus, subject to the prescribed conditions and safety measures; or (ii) the Child is helping his family or family enterprise (not being a hazardous occupation) after his school hours or during his vacations.

Engagement of Children as Artists:

In the context of advancing digitization and the surge of social media, there has been a noticeable trend wherein children are actively engaged as Artists across various mediums including participation in television shows, reality programs, Over-The-Top (OTT) platforms, news broadcasts, and content creation for social media platforms. While the law permits children to be engaged as Artists in the entertainment industry, it concurrently establishes strict regulations to safeguard their protection and welfare under the CLPRA and its Rules which delineate the mechanisms and procedures for engaging children as Artists.

In addition to the provisions of the CLPRA and the Rules, the National Commission for Protection of Child Rights ("NCPCR"), a statutory body formed under Section 3 of the Commissions for Protection of Child Rights Act (CPCR), 2005, bears the responsibility of scrutinizing and assessing the safeguards instituted by existing laws to protect child rights. The NCPCR is empowered to propose measures aimed at enhancing the efficacy of the implementation of the prevalent laws as well as to undertake any other function it deems necessary to advance the cause of child rights and address any ancillary matters pertinent to its mandate. Keeping in view the welfare of children engaged in the entertainment industry as Artists, the NCPCR formulated the NCPCR Guidelines specifically regulating the conditions and involvement of such children either by production houses, digital agencies, endorsers, advertisers, or their parents/guardians/family.

To summarize, any engagement of a Child as an Artist shall have to be strictly in compliance with the CLPRA, Rules, and the NCPCR Guidelines (wherever applicable).

Relevant provisions of NCPCR Guidelines:

In the context of content creation for social media or short video platforms involving children or Adolescents for economic purposes, a clear distinction is made between content produced by production houses or organizations and content created by the Child, his parent/guardian/or family member.

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Chapter-2 of the NCPCR Guidelines is applicable in instances of content involving children, being created by production houses or organizations for social media platforms or short video platforms.

It is essential to note that any content being created either by the Child or his/her family/guardian for economic gain is understood as the Child working in a family enterprise as provided in the exemption under Section 3(2)(a) of the CLPRA and the engagement of the Child in such an involvement in the family enterprise is regulated under Chapter-3 of the NCPCR Guidelines.

Chapter-3 of the NCPCR Guidelines

It is pertinent to note that when a Child becomes the subject of content creation, either individually or through his/her family members, there is a presumption that such Child is engaged in a family enterprise as outlined in Section 3(2)(a) of CLPRA (as detailed above). All parties involved in such content creation, are required to adhere to the guidelines provided under Chapter-3 of the NCPCR Guidelines. These guidelines inter alia deal with regulating the conditions under which the Child is participating in the content creation as well as prescribe measures for ensuring that a part of the revenue derived from such content is deposited in the name of the Child to be used by him on attaining majority. Such guidelines have to be adhered to by the parent/guardian/family member for engaging the Child of the family in the activity of creating content for commercial use. If the parent/guardian/family member is found in violation of Chapter 3 of the NCPCR Guidelines, such parent/guardian/family member shall be in contravention of conditions laid down under Section 3 of the CLPRA and Rule 2C of the Rules, which is punishable under Section 14 of the CLPRA.

Chapter-5 of the NCPCR Guidelines:

Chapter-5 of the NCPCR Guidelines specifically deals with advertisements and is applicable to every manufacturer, service provider, or trader whose goods, products, or services are the subject of an advertisement. The applicability of this chapter also extends to advertising agencies or endorsers whose services are utilized for the promotion of such goods, products, or services.

It is pertinent to note that the guidelines prescribed under Chapter-5 apply to creating advertisements featuring children or publishing advertisements targeting children. The guidelines under this Chapter replicate Section 8 of the Guidelines for Prevention of Misleading Advertisements and Endorsements for Misleading Advertisements, 2022, issued by the Central Consumer Protection Authority under powers conferred to it by Section 18 of the Consumer Protection Act, 2019. It is to be understood that the guidelines under Chapter-5 of the NCPCR Guidelines are to be followed in addition to the other chapters of the NCPCR Guidelines. The guidelines under this Chapter inter alia regulate the subject matter of the content being created with a view to safeguard the interest and welfare of minors.

What measures can be taken by the companies and advertising agencies to mitigate legal risks?

Based on a perusal of the above-mentioned laws, regulations, and guidelines, the following crucial points must be considered by the stakeholders while engaging any Child Social Media Influencer for marketing their product/services:

i. The agreements proposed to be entered into with natural guardians of a Child should be meticulously structured in such a manner to convey the clear intent that the agreements are entered into with the said natural guardian in their individual capacity. It should be explicitly outlined in such agreements that the natural guardian assumes the responsibility for content creation in their own name, whereas his/her Child merely assists in the family enterprise (specifically designated as the creation of social media content). Such a strategic structuring serves a dual purpose –

a. Firstly, such structuring of the contractual arrangement would impose specific obligations directly on the natural guardian in his/her individual capacity and may not be perceived as the natural guardian contracting on behalf of the Child.

b. Secondly, such structuring would minimize the risk of the advertising agency or the company engaging the minor social media influencer being designated as a 'Production House' or 'Content Creator' falling under the purview of Chapter-2 of the NCPCR Guidelines, which imposes direct and stringent obligations on such 'Production House' or 'Content Creator'. Correspondingly, such structure would also strategically align with Chapter-3 of the NCPCR Guidelines, shifting responsibilities to the natural guardian rather than having them apply to the agency or entity whose services/products are the subject of such content.

ii. Furthermore, the agreements entered into with such natural guardians should have adequate representations, warranties, and covenants in relation to compliance with the provisions of the CLPRA, Rules and the applicable provisions of the NCPCR Guidelines, by the natural guardian. In addition, in the event monetary consideration is being paid by the agency to the natural guardian for content being created that features a Child, such agency should ensure that at least twenty percent of the amount being paid to the natural guardian is directly deposited in a fixed deposit account in a nationalized bank in the name of the Child (as per the provisions of Chapter-3 of the NCPCR Guidelines).

Conclusion

In navigating the legal landscape of engaging Child Social Media Influencers in digital marketing, while it is evident that India's regulatory framework is slowly evolving to address the complexities of this burgeoning industry, the legal status of contracts entered into with minors or on their behalf by guardians still remains a critical concern. In order to mitigate risks, companies, and advertising agencies must adopt a proactive approach to evaluate their policies and procedures for engaging Child Social Media Influencers to ensure compliance with Child Labour Laws. Striking a balance between commercial objectives and safeguarding the welfare of minors is paramount in this rapidly evolving sector.

Footnotes

1. (1903) 30 ILR Cal. 539 (India).

2. (1949) 51 Bom. LR. 256 (India) (henceforth, 'Cine Star' case).

3. Ibid., p. 260–261.

4. Cine Star case, p. 264.

5. Section 183, ICA.

6. Cine Star case, p. 258.

7. Section 70 ICA cited in Cine Star case, p. 264; Madhab Koeri v. Baikuntha Karmaker 52 Ind. Cas. 338 (India) decided by the High Court of Patna.

8. Cine Star case, p. 265.

9. Section 2(i) defines an 'Adolescent' to mean any a person who has completed his fourteenth year of age but has not completed his eighteenth year.

10. Section 2(ii) defines a 'Child' to mean any person who has not completed his fourteenth year of age or such age as may be specified in the Right of Children to Free and Compulsory Education Act, 2009 (35 of 2009), whichever is more.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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