As of 2021, roughly seven-in-ten Americans say they use social media.2 The most popular of these social media sites among Americans is YouTube; eighty-one percent of American adults alone report using the platform.3 On this free site, people can upload original content to share with the world, which has led to the rise of content creators “who create and circulate content on social media platforms.”4 The rise of this profession has not emerged without problems, exemplified by creators known as family vloggers. These creators “film vlogs (‘video blog’) [of] their daily lives and compile those clips into videos, which they upload to YouTube.”5 Those who are “[s]uccessful vloggers can do this as a full-time job.”6 Their “content can range anywhere from the daily lives… of the parents… [to] milestone events in a child’s life,”7 which brings up questions surrounding child privacy, which the states have begun to recognize and seek to address. This Note will argue that Washington House Bill 2032 is a viable solution to the inherent problem of child privacy within the emerging profession of family vlogging.
II. Washington H.B. 2032
Introduced to the Washington State House of Representatives on January 18, 2022, House Bill 2032 aims to compensate the children in family vlogs for “severe loss of privacy… [and] the use and exchange of their personal property rights.”8 The legislation stipulates that for a child to be compensated, the video has to earn money that is “equal to or greater than $0.10 per view,” and “[a]t least 30 percent of the vlogger’s compensated video content produced within a 30-day period [must include] the likeness, name, or photograph” of their child.9 A child must receive compensation at the age of 18 amounting to “the percentage of total gross earnings on any video segment including the [child’s] likeness, name, or photograph… that is equal to or greater than the content percentage that includes the minor child as described”10 if these requirements are met.
III. Family Channels
The exploitation of children who are a part of family channels comes most prevalently in the form of privacy violations, encompassed in two torts.11 These are defined, respectively, as the “[p]ublic disclosure of embarrassing private facts about the plaintiff” and “[a]ppropriation, for the defendant’s advantage, of the plaintiff’s name or likeness.”12 The typical remedy for privacy violations is damages.13
Vlogging violates the second tort based upon how revenue is generated on YouTube. For YouTube content creators, advertisements and sponsorships are the most common forms of income.14 The former is when YouTube pays creators for having advertisements on their videos based on the number of views their video receives. The latter is when brands pay creators “to advertise their products,” where they “require a certain amount of time in a video be spent focusing on their product.”15 Brands may pay creators a fixed amount or scale payment according to the number of views the video receives, like YouTube advertisements.16
Family vlogging is one of the most lucrative types of content because it is family-friendly, which “on YouTube gets content creators dramatically higher advertising rates.”17 This family-friendly content also attracts sponsors because they feel “safer” with this content.18 Furthermore, in 2019, a Pew Research Center study found that “[v]ideos that featured a young child” had on average three times as many views as videos that did not feature a young child.19 As a result, children are more vulnerable to exploitation since they can “elevate their [parents’] celebrity status” or grow their following,20 increasing their parents’ amount of money. In addition, many of these parents admit that they would not have what they have today had they not included their children in their social media endeavors.21 Thus, when parents of these children use their images to increase the possible revenue they could make, parents violate the second tort of privacy.
Examples of violations of the first tort can be seen across YouTube. The ACE Family, a family channel with about nineteen million followers, has posted videos with titles such as “WE DID NOT WANT TO DO THIS!”. In this video, there is a clip of one of their children, who was two at the time, “in a state of undress, crying while a doctor examines her with a stethoscope.”22 Yawi Vlogs, with 1.57 million followers, also features embarrassing content, such as a video titled “Savannah’s FIRST time shaving!!” in which “the couple’s tween daughter could be seen fully dressed on the edge of a bathtub as her parents shaved her legs in an effort to teach her how to do it herself.”23 Another family channel, The Shaytards, with over four million followers, posted a video where their “nine-year-old daughter [in 2014] repeatedly pleads ‘Dad! Cut that part out!’ when she tells her dad about a boy she has a crush on.”24 Viewers can see the child “running away from her dad and hiding under the bed” while “her father follows her with the camera, and viewers can hear him saying, ‘this is good footage.’”25 Each of these instances violates the first tort of privacy because they broadcast embarrassing moments in these children’s lives, such as temper tantrums, puberty, and crushes. These are just three examples of many instances of similar child privacy violations.26
IV. States’ Interests
Meyer v. Nebraska (1923) established that the Fourteenth Amendment includes “the right of the individual to… bring up children… according to the dictates of his own conscience,”27 which has been reaffirmed in cases such as Pierce v. Society of Sisters (1925) and Yoder v. Wisconsin (1972).28 However, this is under the assumption that parents will “act in the best interest of their children;”29 if a parent is “willfully disobeying that responsibility[,] [this] could lead to the termination of their parental rights in favor of a parent or custodian who can.”30 A child’s best interests, although defined differently in each state, invariably “refers to the deliberation that courts undertake when deciding what type of services, actions, and orders will best serve a child as well as who is best suited to take care of a child.”31 Typically, when courts make determinations about the “best interests of the child,” factors such as “the child’s circumstances and the parent or caregiver’s circumstances and capacity to parent, with the child’s ultimate safety and well-being [as] the paramount concern,” are considered.32
States are clearly interested in the welfare of children, and research supports that parental control of child privacy can adversely impact the well-being of children. Psychological studies have found that “[p]rivacy serves an important function in the development of individual autonomy, as a mechanism by which boundaries between ourselves and others are established and maintained.”33As a result, “some [psychologists] have recognized that even young children need a certain amount of mental privacy or freedom when to disclose information to others.”34 However, since parents control privacy under the legal scope of family vlogging, “there is a danger that children and their interests will be obscured from view and that those interests will simply be subsumed within the unity of the family.”35 In application, this danger is exemplified in family vlogging, as parents have the ability to violate children’s privacy for a higher income. Furthermore, beyond these privacy violations, this content wields the potential to hurt a child’s future as the videos can “negatively impact their children’s ability to receive college and job acceptances.”36
H.B. 2032 remedies the privacy violations these children face due to their parents’ vlogging by outlining compensation for the use of their likeness, which is consistent with the states’ interest in child welfare. Additionally, the legislation aims to give children who face violations of privacy compensation for their parents’ decisions by which they could be negatively affected.
V. Conclusions and Implications
Washington House Bill 2032 is a viable solution to the privacy violations faced by children who are a part of family vlogging channels. Specifically, children face violations of two invasions of privacy torts, with no recourse for this harm. This bill seeks to change that by providing children with a means by which to be compensated that is typical of protections against other types of privacy violations and that aligns with existing state interests in protecting children. Since H.B. 2032 has yet to be voted on by the Washington State House of Representatives, its actual implications are unknown. However, it could encourage parents to feature their children less in videos so as not to be subject to the law, ultimately saving the children from any violation of privacy.
- *B.A. Candidate for History, Fordham College at Rose Hill. It has been an honor to be a staff writer this year for the Fordham Undergraduate Law Review. I would like to particularly thank the YouTube commentary community, specifically the channel Smokey Glow, which was the first to introduce me to this issue. Thank you also to my family, friends, and FULR who have given me endless support during the writing process.
- Social Media Use in 2021, Pew Research Center 3 (April 7, 2021), https:// www.pewresearch.org/internet/wp-content/uploads/sites/9/2021/04/PI_2021.04.07_Social-Media-Use_FINAL.pdf.
- Arturo Arriagada et al., “You Need At Least One Picture Daily, if Not, You’re Dead”: Content Creators and Platform Evolution in the Social Media Ecology, 6 Social Media + Society 1, 1 (2020).
- Amanda G. Riggio, The Small-er Screen: YouTube Vlogging and the Unequipped Child Entertainment Labor Laws, 44 Seattle Univ. L. Rev. 493, 494 (2021).
- Emma Nottingham, ‘Dad! Cut that Part Out!’ Children’s Rights to Privacy in the Age of ‘Generation Tagged’: Sharenting, Digital Kidnapping and the Child Micro-Celebrity, The Routledge International Handbook of Young Children’s Rights 1, 8 (Jun. 11, 2019).
- Riggio, supra note 4, at 493–94.
- Wash. H.B. 2032, Reg. Sess. 2021–2022 (2022), 1:18-19.
- Id. at 4:5, 4:6–8.
- Id. at 4:21–2.
- William L. Prosser, Privacy, 48 Cal. L. Rev. 383, 389 (1960).
- Jonathan L. Entin, Privacy Rights and Remedies, 41 Case W. Rsrv. L. Rev. 689, 692 (1991).
- Jessica Zanatta, Understanding YouTube Culture and How It Affects Today’s Media, Dominican University of California 1, 10 (2017), https://scholar.dominican.edu/senior-theses/83/.
- Riggio, supra note 4, at 509, 522.
- Zanatta, supra note 13, at 23.
- Jesselyn Cook, A Senate Bill Targets YouTube Pedophiles. Could It Cost Family Vloggers Their Livelihood?, The Huffington Post (Jun. 18, 2019), https://www.huffpost.com/entry/senate-bill-pedophiles-youtube-family-vloggers_n_5d0930e0e4b0e560b70a4f1e.
- Julia Alexander, YouTube creators have begun shifting channels after FTC fine leaves futures in jeopardy, The Verge (Sep. 11, 2019), https://www.theverge.com/2019/9/11/20856715/youtube- ]creators-channel-pivot-demonetization-ftc-fine-google-childrens-content-toys-games.
- Children’s Content, Content Featuring Children and Video Games Were Among the Most-Viewed Video Genres, Pew Research Center (Jul. 25, 2019), https://www.pewresearch.org/internet/2019/07/25/childrens-content-content-featuring-children-and-video-games-were-among-the-most-viewed-videos-genres/.
- Nottingham, supra note 5, at 7.
- 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.
- Sarah Stauff, Parenting in the Public Eye, Communication Senior Capstones 1, 6 (2020).
- Danya Hajjaji, YouTube Lets Parents Exploit Their Kids For Clicks, Newsweek (Oct. 21 2021), https://www.newsweek.com/youtube-lets-lawless-lucrative-sharenting-industry-put-kids-mercy- internet-1635112.
- Nottingham, supra note 5, at 8.
- See generally Def Noodles, 8 Passengers Mom Is Incredibly Toxic, YouTube (June 4, 2020), https://www.youtube.com/watch?v=UqBEG1uxL2k; Hajjaji, supra note 23.
- Meyer v. Nebraska, 262 U.S. 390, 399 (1923).
- Naomi Cahn, State Representation of Children’s Interests, 40 Fam. L.Q. 109, 111 (2006).
- Kristin Henning, The Fourth Amendment Rights of Children at Home: When Parental Authority Goes Too Far, 53 Wm. & Mary L. Rev. 55 (2011).
- Parental Authority and Children’s Right to Privacy, Mevorah Law, https://www.mevorahlaw.com/dupage-county-divorce-lawyers/parental-authority-and-children-s-right-to-privacy-where-is-the-line-drawn.
- Child Welfare Information Gateway, Determining the Best Interests of the Child, Children’s Bureau (June 2020), https://www.childwelfare.gov/pubPDFs/best_interest.pdf.
- Karyn D. McKinney, Space, Body, and Mind: Parental Perceptions of Children’s Privacy Needs, 19 J. of Family Issues 75, 76 (1998).
- Id. at 77.
- Benjamin Shmueli & Ayelet Blecher-Prigat, Privacy For Children, 42 Colum. Hum. Rts. L. Rev. 759, 776 (2011).
- Keltie Haley, Sharenting and the (Potential) Right to Be Forgotten, 95 Ind. L.J. 1005, 1010 (2020).