Children and influence marketing: what about Swiss law?

In the digital age, social media (such as Instagram, Twitter, Facebook, YouTube, and TikTok) are of fundamental importance as marketing and advertising channels. For example, the amount invested globally in brand advertising through social networks will reach $200 billion by 2024.

Children have yet to escape these new influence marketing trends. In the United States in particular, we are observing the emergence of a wave of children influencers, some of whom are earning several million dollars per year. While most platforms specify a minimum age limit of 13 – in line with the Children’s Online Privacy Protection Act of 1998 – some exceptions exist. In this context, the concept of “sharenting”, i.e. the posting of images of children on social media by parents, has arisen.

While the exploitation of children’s images on the Internet and social networks raises new legal issues, the activity of influencing is also likely to cause psychological risks for young children.

In this respect, Swiss law may offer them protection from two standpoints: firstly, that of civil law (through the mechanisms of personality protection and, more specifically, the right to one’s image), but also potentially from the perspective of labor law provisions (in particular those of public law aimed at protecting workers’ health). The latter approach has been taken by the French Parliament and might soon be adopted by the British legislator to regulate and tackle these issues.

In Swiss civil law, the following limitations exist for the use of children’s images by their parents or legal representative:

For a minor capable of expressing their own viewpoint (or “capable of discernment”), their informed consent must be collected before any publication concerning them occurs. Otherwise, a publication by the parent or legal representative may constitute an infringement of his or her image rights. In our view, in the digital realm, the “capacity of discernment” can be present from the age of 6 in the case of a one-off publication of a picture intended for a restricted audience. That being said, the “capacity of discernment” is more likely to be present at around 12 years of age when the child’s image is used repeatedly with wide distribution, particularly for profit-making purposes. Since the capacity for discernment varies between 4 and 14 years of age, this is an indicative age that must be assessed according to the particular child and the circumstances of the case.

In the case of a minor who is not capable of expressing their own viewpoint (or “incapable of discernment”), the parent may validly represent them in exercising their right to their image, except in the case of severe infringement to their personality right. To this end, we consider that the following criteria must be taken into account to determine whether or not there is a severe infringement of the child’s personality, it being specified that the circumstances must always be assessed in the specific case at hand:

• Frequency: a one-off publication is less likely to constitute a personality infringement than recurrent publications.
• Dissemination: a large-scale publication (due to a large community or the parameters of a public account) increases the risk of a personality infringement.
• Staging: a publication in which the child is staged in a degrading manner (nudity, positioning, etc.) not only constitutes a severe infringement of the child’s personality but may also constitute an infringement of the child’s honor and give rise to criminal consequences.
• Personal information: a publication coupled with information about the child’s development (e.g., growth, school performance, or health) constitutes an infringement of the child’s right to personality, the seriousness of which will be assessed according to the information disclosed.

In terms of Swiss labor law, there are several provisions that aim at protecting workers’ health. Where the activity undertaken by the child is of a long-term nature and takes place regularly, it is not excluded that public labor law provisions may apply. However, there are several limitations in relation to the application of these provisions, for example, due to the exception of family businesses (contained in Article 4(3) of the Swiss Federal Labor Act). Therefore, in our view, a provision should be introduced into the Swiss Federal Labor Ordinance No. 5 to extend the scope of application of the provisions on the protection of young workers, even in the case of influencing activities within a family undertaking.

In any case, the children’s good must always remain the primary concern. Indeed, as Article 32 § 1 of the Convention on Rights of the Child of 20 November 1989 recalls, “States Parties recognize the right of the child to be protected from economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child’s education, or to be harmful to the child’s health or physical, mental, spiritual, moral or