Social networks are no longer just platforms for sharing content online between friends, but real platforms of influence and therefore of commerce.
The framework for the commercial exploitation of the image of children is necessary to protect minors under the age of sixteen.
Back to the Decree of April 28, 2022.
Faced with the expansion of influence, the legislator wants to protect child influencers.
The decree specifies the conditions under which people can make, produce and distribute videos mainly featuring minors under the age of sixteen on online video-sharing platforms, in a lucrative context.
The service provided by the child then constitutes work subject in particular to prior administrative authorisation, medical supervision, and the deposit of the sums received from the Caisse des dépôts et consignations.
The decree (Decree of April 28, 2022) comes into force on April 30, 2022.
1) Scope: target actors.
Decree n°2022-727 of April 28, 2022 specifies that law n°2020-1266 of October 19, 2020.
Law n° 2020-1266 of October 19, 2020 aimed at regulating the commercial exploitation of the image of children, applies to children under the age of sixteen and their legal representatives.
The application of the regime relating to the supervision of the commercial exploitation of the image of minors applies to employers distributing on an online platform audiovisual recordings whose main subject is a child under the age of sixteen.
2) Protection of child influencers.
2.1) Submission of an authorization request.
The filing of an application for authorization with the prefect of the company's headquarters applies to any person wishing to hire or produce a child under the age of sixteen with a view to carrying out the activities set out in article L7124- 1 of the Labor Code, including audiovisual recordings for distribution for profit on a video-sharing platform service.
Similarly, the request for individual authorization is examined according to the decree, by the DREETS (departmental director in charge of the economy, employment, work and solidarity), in order to allow more targeted monitoring and protection of minors.
2.2) Control of the proposed role.
Decree No. 2022-721 of April 28, 2022 regulates the commercial exploitation of the image of minors.
The decree submits the instruction of the individual authorization to the appreciation of the difficulties and the morality of the role entrusted to the child .
In this way, both modeling, the field of video games and now influence, are subject to a condition of morality in order to protect minors.
In addition to the moral nature of the remunerated activity in question, the decree also imposes the assessment during the instruction of the individual authorization, "of the rhythm of the activities, in particular in the evening or during the same week", which should not be excessive in view of the age of the person concerned.
2.3) Child Pre-Employment Screening.
Decree No. 2022-721 of April 28, 2022 submits the application for approval submitted by a modeling agency with a view to hiring children, to a more precise medical examination, detailed in article R7124-9 of the Labor Code .
Indeed, this last article specifies that this medical examination must be carried out by a pediatrician or a general practitioner, and must show whether "taking into account the age and the state of health of the child, this one is able to ensure a modeling activity without compromising his health or his development”.
2.4) Application for approval subject to specific conditions .
The employer's approval is subject to several conditions, with the aim of guaranteeing greater protection of the image of minors.
To this end, the application for approval must be accompanied by numerous documents, which are as follows:
1° An extract from the birth certificate of the employer or its directors, partners and managers in the case of a company;
2° A certificate of payment of contributions to social security organizations for employers in activity at the time of filing the application for approval;
3° A certificate by which the employer undertakes to have the child he employs undergo, at his own expense, the medical examination provided for in Article R7124-19-1;
4° All elements making it possible to assess the morality of the employer as well as the conditions under which he will carry out his activity;
5° A document establishing the civil status of the child;
6° The written authorization of his legal representatives accompanied by the list of jobs previously or currently held by the child;
7° All documents making it possible to assess the difficulties and the morality of the role that the child is called upon to play;
8° All details on the conditions of employment of the child, on his remuneration and on the arrangements made to ensure his school attendance.
Approval is granted by "the administrative authority defined in article R7124-1", i.e. by the prefect of the company's head office or the prefect of Paris when the company's head office is found abroad.
The administrative authority grants approval for a renewable period of one year, on the assent of a commission .
The commission participates in the examination of individual authorization requests and requests for approval to hire one or more children.
It includes in each department:
1° A magistrate charged with the duties of juvenile judge and appointed by the first president of the court of appeal, president;
2° The academic director of the national education services acting on delegation from the rector of the academy or his representative, or, in Paris, the director of the Paris academy or his representative;
3° The departmental director in charge of employment, labor and solidarity or his representative;
4° A doctor;
5° The regional director of cultural affairs or his representative, or, in Paris, a representative of the minister responsible for culture, appointed by order .
Also, this commission can also hear any person qualified because of his competence in the field of child protection or his knowledge of the sector of activity concerned by the request .
Approval, or renewal of approval, can only be granted when the guarantees provided to the child as to his physical and psychological safety are sufficient.
In addition, as part of the examination of the application, the administrative authority defined in article R7124-1 may request the issue of bulletin no. 2 of the criminal record.
No approval may be granted or renewed if it appears that the employer or one of its directors, partners or managers has been the subject of a conviction appearing on this bulletin .
2.6) Suspension of approval.
The duration of the suspension of approval may not exceed one month.
Within this period, the commission, seized by the administrative authority defined in article R7124-1, proposes to the latter, after the employer concerned has been given the opportunity to present his observations:
1° Either the withdrawal of approval;
2° Or the lifting of the suspension if the measures taken by the employer are such as to eliminate the risks incurred by the child and prevent their recurrence.
The suspension ends at the end of the one-month period if the administrative authority defined in article R7124-1 has not made its final decision known within this period .
. Decree n°2022-727 of April 28, 2022 relating to the supervision of the commercial exploitation of the image of children under the age of sixteen on online platforms. Décret n° 2022-727 du 28 avril 2022 relatif à l'encadrement de l'exploitation commerciale de l'image d'enfants de moins de seize ans sur les plateformes en ligne - Légifrance (legifrance.gouv.fr)
. Child influencers: what status, what legal framework? Influenceurs : quel statut ? Quel cadre juridique ? Par Frédéric Chhum, Avocat et Julie Rougé-Guiomar, Juriste. (village-justice.com)