A new Virginia law requiring a child under the age of 16 who meets certain criteria must be compensated when taking part in content creation, known as SB 998, went into effect July 1.
The law aims to protect young people from being exploited by adults in creating popular social media content that the young people either don’t fully have the right to consent to, or are not being compensated for. But according to experts, there may be some unintended consequences as well.
Under the law, if a content creator features a child under the age of 16 in 30% of their video content over a 30-day period, they’re required to set up a trust fund for the child to access once they turn 18 years old. That’s in addition to keeping meticulous records related to how often the child was featured in the content.
“I think a kind of underrated or overlooked thing is that this law has implications for all content creators, not just mommy vloggers, which has kind of been what we’ve been thinking about when we think of these child influencer laws,” said Pratika Katiyar, a tech policy researcher who works for the American Civil Liberties Union.
The law defines content creators as “an individual or individuals 18 years of age or older, including family members, who create video content performed in the Commonwealth in exchange for compensation.” If a creator violates the law, they risk facing civil litigation.
Katiyar said that creates a dilemma for journalists, activists and content creators who fall under the definition.
“[Anyone covering] stories related to minors like protests or school shootings, unfortunately, are now under this law required to keep proof or documentation about their reporting or about their content creation that features minors. … It creates this just kind of burden of proof that is overwhelming for independent creators and creates a chilling effect on lawful speech,” Katiyar said.
An example Katiyar offered was for journalists covering the 2018 Valentine’s Day massacre at Parkland, Florida’s Marjory Stoneman Douglas High School which left 17 people dead. A number of the surviving students went on to advocate for gun safety and weeks later founded the nonprofit March for Our Lives, which advocates for gun control legislation.
She said if there was a Florida law such as SB 998 in place then, any journalists covering the students or the shooting in a video format would have to keep thorough documentation of every student under the age of 16 included in the coverage — even if it’s only a student’s likeness or name featured in the content.
The burden of proof and fear of civil litigation could result in deterring journalists from covering certain topics relating to minors.
Michael Carroll, a professor at American University’s Washington College of Law and co-director of the Program on Information Justice and Intellectual Property, said the law’s exceptions don’t capture all the free speech uses that ought to be permitted.
“You’re essentially saying to the courts then that somebody has to sue to challenge the law, and then you need a court to agree and then create some carve outs — and that’s going to be the problem — that’s not how free speech is supposed to work,” Carroll said.
Carroll even pointed to a line in the legislation stating “a child 12 or 13 years of age employed outside school hours on farms, in orchards, or in gardens with the consent of his parent or a person standing in place of his parent;” is exempt from the law.
“That then raises a ‘smell test’ question: How well did you really think this out if, if you’re creating these tiny little carve outs for very specific users, without considering journalists and other categories of people who would be swept in under the broad definition?” Carroll said.
While Carroll and Katiyar agree that the Virginia law stems from looking for solutions to the very real issue of children being exploited in online spaces, they said legislation targeting that must balance creators’ rights to free speech.
“I think some of these laws have the right idea. But in terms of the privacy aspect, a better solution — and one that I advocate for often — is better privacy laws. And that’s on the federal level,” Katiyar said.
The new law comes amid a national trend of legislation targeting speech online, such as the Kids Online Safety Act or state laws requiring age verification for accessing certain material online.
“I just think overall, we should be concerned about the precedent that it sets with regards to regulating speech online,” Katiyar said. “It’s a very fine line between privacy and free expression online, but I think these laws under the guise of protecting privacy are also just harming free expression.”
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